An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1540


Filed: 21 October 2003


v .                         Wake County
                            No. 01 CRS 57896-57900

    Appeal by defendant from judgment entered 11 July 2002 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 15 September 2003.

    Roy Cooper, Attorney General, by Elizabeth F. Parsons, Assistant Attorney General, for the State.

    Richard E. Jester for defendant-appellant.

    STEELMAN, Judge.

    Defendant, Cyronn Tyree Murray, appeals convictions for two counts of second degree kidnapping, two counts of robbery with a dangerous weapon, and one count of discharging a firearm into occupied property. For the reasons discussed herein, we find no error.
    On 8 June 2001, Ryan May-Arthur, Sam Williams, and defendant agreed to steal some marijuana from a person known to May-Arthur. May-Arthur drove the other two men to defendant's home where defendant obtained bullets and loaded them into his handgun. They then went to a residence in Raleigh, North Carolina, where May- Arthur had previously purchased some marijuana.
    On that same evening, a number of teenagers were gathered atthe residence in Raleigh while the owners of the home were out of town. Some of the teenagers present were drinking alcohol and smoking marijuana. Among those present at the residence that evening were Geoffrey Gotliffe, Matthew Robitaille, and Chris Vine- Britton.
    Around midnight on that evening, Robitaille was approached by defendant in the driveway of the residence. Defendant pulled a handgun on Robitaille and asked him for “the dro,” which Robitaille understood to mean marijuana. With the gun pointed at Robitaille, defendant robbed him of all the money in his pockets, which was only one dollar. Defendant then opened the door to Robitaille's car and took some compact discs, clothing, and other items from the car. Williams took all the property defendant removed from Robitaille's car to the vehicle owned and occupied by May-Arthur.
    Defendant stated that he intended to go to the residence where other people were gathered, and he began walking toward the garage followed by Williams and May-Arthur. At that time, Goeffrey Gotliffe exited the house and went onto the driveway. Defendant pointed a handgun at Gotliffe and asked him for “the loot and the dro.” Defendant patted Gotliffe down and took his cellular telephone.
    Defendant told Robitaille and Gotliffe to walk with him to the back of the house to see their friends. They all walked around back, but no one was there. Robitaille and Gotliffe told defendant their friends might have gone upstairs. At that point, defendant ordered Robitaille and Gotliffe into the garage at gunpoint. Defendant told Williams and May-Arthur to guard Robitaille and Gotliffe while he went upstairs. Williams picked up a golf club, and May-Arthur picked up a BB gun.
    Defendant walked up an outside staircase onto the deck and knocked on the glass door that led into the house. Chris Vine- Britton was inside the home. Vine-Britton turned on the lights and saw defendant on the deck. Defendant pointed a handgun at Vine- Britton through the glass door and asked for money and “dro.” Defendant fired two shots at the door, then turned and ran away.
    When May-Arthur and Williams heard the shots, they fled from the residence. Defendant, Williams, and May-Arthur all rode away in May-Arthur's car.
    Defendant was convicted by a jury of robbery with a dangerous weapon and second-degree kidnapping of Robitaille, robbery with a dangerous weapon and second-degree kidnapping of Gotliffe, and discharging a firearm into occupied property. The trial court entered judgment imposing two active sentences of 84 to 110 months, and three active sentences of 30 to 45 months. All sentences were ordered to be served consecutively. Defendant appeals.
    Defendant first argues that the trial court erred in proceeding on the indictment for robbery with a dangerous weapon of Gotliffe, file number 01 CRS 57897, because the indictment had been dismissed with leave and was not properly reinstated. We disagree.
    Defendant was indicted on 6 November 2001 for robbery with a dangerous weapon of Gotliffe. On 24 January 2002, the State dismissed the charge with leave, pursuant to Section 15A-932 of theNorth Carolina General Statutes, because defendant could not be located to be served with an order for arrest. On 1 April 2002, the State completed the form for reinstating the charge, but failed to mark the box indicating “Reinstatement.” However, the title of the form stated that it was a “Notice of Reinstatement,” and the portion of the form entitled “Reinstatement” was signed by the prosecutor. On 29 April 2002, defendant and his attorney both signed a form waiving arraignment on all charges, including both counts of robbery with a dangerous weapon.
    A dismissal with leave may be entered by a prosecutor when a defendant “[c]annot be readily found to be served with an order for arrest” after indictment by the grand jury. N.C. Gen. Stat. § 15A- 932(a) (2001). Proceedings may be reinstated by the prosecutor “by filing written notice with the clerk.” N.C. Gen. Stat. § 15A- 932(d) (2001).
    Generally, motions addressed to criminal pleadings must be made before the defendant is arraigned. N.C. Gen. Stat. § 15A-952(b)(6), (c) (2001). However, “[m]otions concerning jurisdiction of the court or the failure of the pleading to charge an offense may be made at any time.” N.C. Gen. Stat. § 15A-952(d) (2001). The statute in question, Section 15A-932(d), is a procedural calendaring device. State v. Patterson, 332 N.C. 409, 421, 420 S.E.2d 98, 105 (1992). The statute “is not 'jurisdictional' in nature, nor does failure to strictly comply with its requirements result in the 'failure of the pleading to charge an offense.'” Id. (quoting N.C. Gen. Stat. § 15A-952(d)).     Moreover, the defendant must object prior to arraignment that proper notice of reinstatement was not given. Id. at 421, 420 S.E.2d at 104. Failure to object prior to arraignment results in waiver by the defendant of any error in compliance with the notice requirement of Section 15A-932(d). See id.
    In this case, the prosecutor gave actual written notice of reinstatement under Section 15A-932(d). Although the prosecutor did not check the box on the form indicating “Reinstatement,” the Reinstatement section of the form was signed by the prosecutor. There was no other conceivable purpose for the prosecutor signing and filing the form other than to reinstate the charge. In addition, the form was filed contemporaneously with four other completed reinstatement forms, which reinstated the other charges against defendant.
    Further, we conclude that defendant waived any defect as to notice. Defendant waived arraignment on all charges, including the charge of robbery with a dangerous weapon of Gotliffe. Because defendant failed to object prior to his waiver of arraignment, he waived any error in the State's written notice of reinstatement. Id. at 422, 420 S.E.2d at 105; see N.C. Gen. Stat. § 952(b), (c). Defendant's first argument is without merit.
    In his second argument, defendant contends that the trial court erred in instructing the jury on the theory of acting in concert as to the kidnapping of Robitaille and Gotliffe. We disagree.
    The elements of acting in concert are: (1) two or morepersons; (2) joined in a common purpose to commit a crime; (3) where all persons are actually or constructively present. See State v. Kemmerlin, 356 N.C. 446, 475, 573 S.E.2d 870, 890 (2002); State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71 (1997), cert. denied, 523 U.S. 1024, 140 L. Ed. 2d 473 (1998). A person acting in concert to commit a crime is “not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof.” State v. Westbrook, 279 N.C. 18, 41-42, 181 S.E.2d 572, 586 (1971), death sentence vacated on other grounds, 408 U.S. 939, 33 L. Ed. 2d 761 (1972).
    In this case, defendant, May-Arthur and Williams joined in a common purpose to obtain marijuana by committing armed robbery at the residence in Raleigh. The three men went to the home together for that specific purpose. When they were unsuccessful in obtaining marijuana from Gotliffe and Robitaille, defendant ordered them to the garage at gunpoint, and then directed Williams and May- Arthur to hold them there. This was done to facilitate defendant going to the residence and robbing the occupants. The confinement, restraint, and moving of Gotliffe and Robitaille by Williams and May-Arthur was done upon defendant's express instructions in furtherance of their common purpose to commit robbery. All elements of acting in concert were present, and defendant is guilty as a principal for the kidnapping of Gotliffe and Robitaille committed in pursuit of that common purpose. Defendant's secondargument is without merit.
    Defendant's final argument is that the trial court erred in denying his motions to dismiss the kidnapping charges at the close of the State's evidence and at the close of all the evidence. We disagree.
    In considering a motion to dismiss, the only issue for the trial court is whether there is substantial evidence of each essential element of the charged offense and of the defendant being the perpetrator. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). Substantial evidence is such relevant evidence as a reasonable mind would consider adequate to support a conclusion. State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). The trial court must view the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference that could be drawn from it. State v. Jaynes, 342 N.C. 249, 274, 464 S.E.2d 448, 463 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996).
    Under North Carolina law, a person is guilty of kidnapping if he unlawfully confines another person without that other person's consent, for the purpose of “[f]acilitating the commission of any felony.” N.C. Gen. Stat. § 14-39(a)(2) (2001). The requisite restraint must be “separate and apart from that which is inherent in the commission of the other felony.” State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). Moreover, “[i]t is not necessary that the felony which was facilitated by the kidnapping be committed against the victim of the kidnapping.” State v.Brayboy, 105 N.C. App. 370., 375, 413 S.E.2d 590, 594, disc. rev. denied, 332 N.C. 149, 419 S.E.2d 578 (1992). An indictment for kidnapping must allege the specific purposes on which the state intends to rely, and the state is restricted to proving those purposes alleged in the indictment. State v. McClain, 86 N.C. App. 219, 221, 356 S.E.2d 826, 827-28 (1987). An indictment for kidnapping must allege that the confinement, restraint, or removal was carried out for the purpose of facilitating “a felony,” but it need not specify the felony referred to. State v. Freeman, 314 N.C. 432, 435, 333 S.E.2d 743, 745 (1985); see N.C. Gen. Stat. § 15A-924(a)(5) (specifying the requirements for valid indictments).
    Defendant contends that there was restraint inherent in the armed robbery of Robitaille and Gotliffe, and that this same restraint cannot be used to support a conviction for kidnapping. He further asserts that since defendant was not charged with the attempted armed robbery of Vine-Britton, this cannot be the felony that was facilitated by the restraint of Robitaille and Gotliffe.
    The indictments for both kidnappings specifically state that the purpose was “to facilitate the commission of a felony, to wit: robbery with a dangerous weapon.” The state's evidence at trial shows that Robitaille and Gotliffe were restrained, after the armed robberies of both of them were complete, in order to permit defendant to commit another robbery with a dangerous weapon against other persons located inside the residence. While Williams and May-Arthur confined the victims to the garage, defendant attempted to gain entry into the residence to steal marijuana. He pointed ahandgun at Vine-Britton, asked for money and “dro,” then fired two shots at the door before running away. As alleged in the indictments, the state's evidence proves that the kidnappings were committed to facilitate an armed robbery. This was the attempted armed robbery of Vine-Britton and the occupants of the residence. Section 14-39 requires that the kidnapping be for the purpose of “[f]acilitating the commission of any felony.” N.C. Gen. Stat. § 14-39(a)(2). It does not require that the defendant be charged with the felony being facilitated, or that the felony being facilitated actually be consummated.
    Viewing the evidence in the light most favorable to the State, we hold that there was substantial evidence of the second degree kidnapping of Robitaille and Gotliffe. This assignment of error is without merit.
    Chief Judge EAGLES and Judge MCCULLOUGH concur.
    Report per Rule 30(e).

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