Appeal by defendant from judgments entered 7 November 2002 by
Judge A. Leon Stanback in Durham County Superior Court. Heard in
the Court of Appeals 13 September 2004.
Roy A. Cooper, III, Attorney General, by Jennie Wilhelm Mau,
Assistant Attorney General, for the State.
Paul Pooley, for defendant-appellant.
MARTIN, Chief Judge.
Defendant was indicted for first degree kidnapping for the
purpose of facilitating the commission of a felony, Statutory
Rape, and for two counts of first degree statutory sexual offense
of a child thirteen years old. Evidence presented at trial tended
to show the following: Defendant met 13 year old D.B. in an
Internet chat room during the summer of 2001. After interacting by
computer several times a week, they exchanged photos and telephone
numbers. D.B. phoned defendant using either her calling card or
with a calling card number provided by defendant. In July 2001,
D.B. wanted to run away from her Marmaduke, Arkansas, home and made
plans for defendant to pick her up near there, but defendant did
not arrive. On 15 September 2001, D.B. packed a backpack and went
to a park near her mother's home, where she had agreed to meet
defendant, but he was not there and D.B. abandoned her plan to run
away. Later that afternoon, D.B. recognized defendant from his
photograph and the out-of-state license plates on his automobile,
which was parked at a stop sign near her house, and at the last
second . . . decided to go with him anyway. Defendant and D.B. traveled to North Carolina and defendant
rented a motel room in Durham, where they remained from 16
September 2001 until 20 September 2001. D.B. testified that
defendant fondled her breasts, penetrated her vagina with his penis
and with his fingers, and that they performed oral sex on one
another. Defendant left the motel to go to work each day and D.B.
stepped outside only when the maids cleaned the room.
When D.B. failed to return home on 15 September 2001, her
older sister revealed the Internet profile of defendant to their
mother, who contacted the police. Local police notified the state
police and the FBI. With the owners' consent, the FBI confiscated
both D.B.'s family computer and the computer used by defendant,
which was owned by his former girlfriend. The computers revealed
the interaction between D.B. and defendant. On 21 September 2001,
FBI agents went to the motel in Durham and spoke with D.B.; while
they were there the defendant phoned and asked her to meet him at
a nearby McDonald's. D.B. informed the agents and they proceeded
there to arrest defendant. After having been given his Miranda
warnings, defendant made a statement to investigators regarding the
events of 15-20 September 2001.
The trial court granted the State's motion to consolidate
these charges with a charge of statutory rape of the same victim by
defendant in the same transaction. The jury convicted defendant of
two counts of first degree sexual offense and one count of first
degree kidnapping, but was unable to reach a verdict on the
statutory rape charge. Defendant was sentenced to consecutive
sentences of 336 months to 413 months for each first degree sexualoffense charge and a consecutive sentence of 116 months to 149
months for first degree kidnapping. Defendant appeals.
Defendant brings forward eight assignments of error in five
separate arguments. Defendant has not presented arguments in
support of the remaining thirteen assignments of error contained in
the record on appeal. Therefore, they are deemed abandoned. N.C.
R. App. P. 28(b)(5).
 Defendant first argues that the short-form indictments for
first degree statutory sexual offense fail to meet constitutional
standards. In his brief he acknowledges that our courts have
upheld the constitutionality of the short-form indictment; however,
defendant contends that these prior holdings should be overruled in
light of Jones v. United States
, 526 U.S. 227, 143 L. Ed. 2d 311
(1999), Apprendi v. New Jersey
, 530 U.S. 466, 147 L. Ed. 2d 435
(2000), and Ring v. Arizona
, 536 U.S. 584, 153 L. Ed. 2d 556
(2002). This argument was rejected by our Supreme Court in State
, 357 N.C. 257, 270, 582 S.E.2d 593, 602, cert. denied
U.S. 985, 156 L. Ed. 2d 702 (2003), which specifically cited State
, 305 N.C. 378, 380, 289 S.E.2d 360, 362 (1982) as
upholding short-form indictments charging sex offenses.
Accordingly, this assignment of error is overruled.
 Second, defendant maintains the trial court erred and
abused its discretion when it admitted testimony that defendant
viewed sexually explicit photos on his home computer. We disagree.
Our Supreme Court has been liberal in allowing evidence of similar
offenses in trials on sexual crime charges. State v. Frazier
, 344N.C. 611, 615, 476 S.E.2d 297, 300, (1996); see also State v.
, 326 N.C. 268, 280, 389 S.E.2d 48, 55 (1990), cert. denied
421 S.E.2d 360 (1992) (admitting testimony concerning prior sexual
act in front of a child admissible to show motive); State v. Rael
321 N.C. 528, 534, 364 S.E.2d 125, 129 (1988) (permitting evidence
of possession of pornography as relevant to corroborate victim's
testimony). The photographs at issue here were displayed to
testifying witnesses for the permissible purposes of establishing
defendant's use of his girlfriend's computer and defendant's
motive, preparation, and plan.
Defendant argues that even if this evidence was relevant under
G. S. § 8C-1, Rule 404 (b), the trial judge abused his discretion
when weighing its probative value and prejudicial effect. N.C.
Gen. Stat. § 8C-1, Rule 403 (2003). Necessarily, evidence which
is probative in the State's case will have a prejudicial effect on
the defendant. State v. Mercer
, 317 N.C. 87, 93-94, 343 S.E.2d
885, 889 (1986). The exclusion of evidence under this rule is a
matter within the trial court's discretion and will only be
reversed on appeal with a showing that its decision was manifestly
unsupported by reason. State v. Womble
, 343 N.C. 667, 690, 473
S.E.2d 291, 304 (1996), cert. denied
, 519 U.S. 1095, 136 L. Ed. 2d.
719 (1997). Here, the judge did not admit the images, only
testimony by other users of the computer that they were not
familiar with the images. The State was allowed to lay its
foundation but was cautioned that the pictures were inflammatory.
The trial court took the additional precaution of placing them in
an envelope to avoid the images being shown to the jury. Thedecision to allow the testimony is not unsupported by reason and
this argument is overruled.
[3,4] Third, defendant contends the trial court erred by
instructing the jury on kidnapping theories not set forth in the
indictment. The State concedes error, but argues it was harmless.
Defendant argues that the variance between the first degree
kidnapping indictment and the judge's instructions to the jury
allowed conviction on theories not included in the indictment. The
first degree kidnapping indictment charged that defendant
unlawfully, willfully, and feloniously did
kidnap [D.B.], a person under the age of
sixteen years, by unlawfully confining her,
restraining her and removing
her from one
place to another, without her consent, and for
the purpose of facilitating the commission of
, Statutory Rape
, and the victim was
not released by the defendant in a safe place.
(Emphasis added). Defendant argues that the judge erred when he
instructed the jury:
So I charge that if you find from the evidence
beyond a reasonable doubt that on or about the
alleged dates of September 16 through
September 20, 2001, the defendant unlawfully
, restrained or removed
one place to another, and that [D.B.] had not
reached her sixteenth birthday, and her parent
did not consent to this confinement,
restraint, or removal and that this was done
for the purpose of facilitating the
defendant's commission of first degree sexual
, and that this confinement, restraint,
or removal, was a separate and complete act
independent of and apart from the felony of
first degree sexual offense, and that [D.B.]
had been sexually assaulted or not released in
a safe place, it would be your duty to return
a verdict of first degree kidnapping.
(Emphasis added). Defendant did not object to this variance at
trial, so we apply the plain error standard of review. See Statev. Odom
, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (adopting
plain error standard of review). Plain error is error that
probably resulted in the jury reaching a different verdict than it
otherwise would have reached. State v. Bagley
, 321 N.C. 201, 213,
362 S.E.2d 244, 251 (1987), cert. denied
, 485 U.S. 1036, 99 L. Ed.
2d 912 (1988). Defendant bears the burden of showing that without
the erroneous instruction, the jury would not have found him
guilty. State v. Raynor
, 128 N.C. App. 244, 247, 495 S.E.2d 176,
We have previously held that a variance between an indictment
charging unlawful confinement, restraint and
instructions on unlawful confinement, restraint or
removal is not
reversible error. State v. Lancaster
, 137 N.C. App. 37, 47, 527
S.E.2d 61, 68, disc. review denied
352 N.C. 680, 545 S.E.2d 723
(2000) (emphasis added). Additionally, the indictment charged
defendant with kidnapping under the enumerated purpose of
facilitating statutory rape. Defendant argues that because the
jury could not reach a verdict on the statutory rape charge, the
variance constitutes plain error. We disagree. The statute
requires only that the kidnapping facilitate the commission of any
felony, State v. Moore
, 77 N.C. App. 553, 558, 335 S.E.2d 535, 538
(1985), and it is concerned with defendant's intent, which may be
inferred from the circumstances surrounding the event and must be
determined by the jury. Id
. There was ample evidence in the
record to support the theories given in the jury instructions, and
to permit the jury to find all of the elements of kidnapping
. Accordingly, this assignment of error is overruled.  Fourth, defendant claims the trial court erred in denying
his motion to dismiss at the conclusion of all the evidence due to
insufficiency of the evidence. Defendant argues that the State did
not present legally sufficient evidence on the lack of parental
consent. The dispositive issue in reviewing a motion to dismiss
on the ground of sufficiency of the evidence is whether substantial
evidence exists as to each essential element of the offense charged
and of the defendant being the perpetrator of that offense. State
, 156 N.C. App. 139, 142, 575 S.E.2d 835, 837 (2003).
Substantial evidence is relevant evidence that a
might accept as adequate to support a conclusion. State v.
, 303 N.C. 680, 685, 281 S.E.2d 377, 381 (1981).
evidence can be direct, circumstantial, or both. State v.
, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). The trial
court must consider the evidence
in the light most favorable to
the State, and the State is entitled to every reasonable inference
to be drawn from it.
State v. Bright
, 301 N.C. 243, 257, 271
S.E.2d 368, 377 (1980).
Defendant argues that D.B. did not know if she had parental
permission to travel with him and her parents' failure to testify
regarding their consent means the State failed to prove each
element of section 14-39 of the North Carolina General Statutes.
Defendant's argument is without merit.
D.B. testified that she did not have permission from her
parents to go with defendant, and that to her knowledge defendant
had not asked her parents to take her with him to North Carolina.
Furthermore, D.B.'s mother testified that while she gave D.B.permission to walk a friend home, she told her to come back in
just a little bit. When D.B. failed to return, she got anxious,
questioned D.B.'s friend and then called her husband and the
police. Viewed in the light most favorable to the State, the jury
could infer from this testimony a lack of parental consent. State
, 104 N.C. App. 97, 104, 408 S.E.2d 531, 535, disc. review
, 330 N.C. 444, 412 S.E.2d 78 (1991).
 Finally, defendant argues the trial court committed error
when sentencing defendant on both first degree kidnapping and the
two sex offenses. The State concedes error. The defendant cannot
be punished for both the kidnapping and the underlying sexual
assault, which raised the kidnapping to the first degree. State v.
, 316 N.C. 13, 23, 340 S.E.2d 35, 40-41 (1986). The jury
returned guilty verdicts for both first degree kidnapping and the
two sexual offenses, but did not specify which elements resulted in
the first degree kidnapping. As a result, the ambiguous verdict
must be construed in favor of the defendant. State v. Gardner
N.C. 444, 451, 340 S.E.2d 701, 706 (1986).
Since we cannot
determine if the same sexual acts were used by the jury to convict
the defendant of first degree kidnapping, State v. Stinson
N.C. App. 252, 257, 489 S.E.2d 182, 185-86 (1997), we remand the
case to the trial court for re-sentencing for second degree
No error, remanded for resentencing.
Judges WYNN and McGEE concur.
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