An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-141


Filed: 6 January 2004


v .                             Wake County
                                Nos. 00 CRS 35665-66

    Appeal by defendant from judgments entered 31 January 2002 by Judge W. Osmond Smith, III, in Wake County Superior Court. Heard in the Court of Appeals 1 December 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Richard J. Votta, for the State.

    Paul Pooley for defendant-appellant.

    EAGLES, Chief Judge.

    Defendant Lamont Bethea appeals from his convictions of first- degree rape and second-degree kidnapping. (We note that defendant's last name is spelled “Betha” and “Bethea” throughout the record on appeal. We elect to refer to defendant as Lamont Bethea, though there is no doubt that “Lamont Betha” and “Lamont Bethea” are one and the same person.) Defendant argues on appeal that the trial court erred by: failing to dismiss the kidnapping charge; instructing the jury on acting in concert; and failing to give the full “acting in concert” jury instruction. After careful consideration, we find no error.     The evidence tends to show the following. On 6 May 2000, defendant, defendant's brother Sedric Bethea and Ellis Stokes went to a mobile home in Knightdale. The three men planned to get cash and cocaine from a man named Gillis that lived in the trailer with Brad Lane. On 6 May, several people were having a party at Lane's trailer. Ashley H., a seventeen-year-old female, attended the party with her friend Joslyn B.
    Around 11:00 p.m., defendant and Sedric burst through the trailer's door and ordered all of the people inside to “get down.” Sedric was armed with an AK-47 rifle and defendant had a pistol. Defendant and Sedric gathered all of the party guests in the living room of the trailer. Stokes did not enter the trailer until all of the people inside were in the living room.
    The three men demanded that the guests give them money and cocaine. The guests told the men that there was no cocaine in the trailer and that Lane was not there. The intruders became angry and ordered the guests to empty their pockets. They also ordered the guests to strip. The male guests complied, but Ashley and Joslyn remained clothed. Defendant, Sedric and Stokes beat and kicked the male guests who were on the floor. Ashley asked the three men to leave and Sedric began taunting her.
    Sedric, defendant and Stokes met in a corner of the living room to discuss privately what they would do next. Ashley overheard part of this conversation, in which Sedric said: “[D]o you see that girl [Ashley] in the white shorts over there? Look at that.” Stokes responded: “[N]o, man, that's not what we came for.” After the conversation ended, Sedric approached Ashley and began rubbing her breasts and pubic area, both over and under her clothes, with his gun. Sedric attempted to insert the muzzle of his gun into Ashley's vagina.
    Defendant, Sedric and Stokes had a second private conversation in a corner of the room. After this conversation, Sedric grabbed Ashley's arm and forced her into the bathroom at gunpoint. Sedric demanded that Ashley perform oral sex on him, but she refused. Defendant joined Sedric and Ashley in the bathroom. After Sedric left the bathroom, defendant demanded oral sex from Ashley, but again she refused. Defendant left the bathroom and Sedric returned. Sedric began kissing Ashley and rubbed his exposed penis on her stomach. Sedric threatened Ashley with his gun and forced her to lie down. Upon hearing “a ruckus” in the living room, Sedric took Ashley back into the living room with the other party guests.
    After a few minutes in the living room, Sedric grabbed Ashley and forced her to go outside behind the trailer. Defendant joined Sedric and Ashley outside. Defendant switched guns with Sedric, taking the pistol from him. Sedric went back inside the trailer. Defendant ordered Ashley to lie down and held his pistol against her head while he had vaginal intercourse with her. Sedric came outside a few minutes later and defendant went inside. Sedric also had vaginal intercourse with Ashley while he held her at gunpoint.
    Defendant was indicted and found guilty of first-degree rape and first-degree kidnapping. The trial court arrested judgment onthe first-degree kidnapping charge and entered judgment on second- degree kidnapping and first-degree rape. Defendant was sentenced to consecutive prison terms of 288 to 355 months for the rape conviction and 29 to 44 months for the kidnapping conviction. Defendant appeals.
    Defendant argues that the trial court should have dismissed the kidnapping charge against defendant. Defendant contends that the evidence demonstrates that he did not perform any act to confine or restrain Ashley, although he did sexually assault her once Sedric removed Ashley from the trailer. Defendant argues that this evidence is not sufficient to sustain the kidnapping charge against him. We disagree.
    When considering a motion to dismiss, “the trial court is to consider the evidence in the light most favorable to the State. In so doing, the State is entitled to every reasonable intendment and every reasonable inference to be drawn from the evidence . . . .” State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652-53 (1982)(internal citation omitted). Here, defendant argues that all of the acts necessary to prove the offense of kidnapping were performed by Sedric. However, the State contends that defendant could be held liable for Sedric's actions under the theory that defendant and Sedric were acting in concert. Our Supreme Court has stated:
        It is not . . . necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence issufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.

State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395 (1979). Defendant argues that the common plan or purpose that was formed between Sedric and defendant was merely the plan for robbing Lane; no plan to kidnap or sexually assault Ashley was formed before the robbery began.
    Viewing the evidence in the light most favorable to the State, Sedric performed all of the acts necessary to complete the offense of kidnapping. He removed Ashley from the living room and confined her in the bathroom, and again removed her from the living room to the outside of the trailer where she was raped twice at gunpoint. Each time before Sedric removed Ashley to a different area, he had a conversation with defendant. During one of these conversations, defendant and Sedric were overheard talking about Ashley. Each time after Sedric moved Ashley from the living room to another location, defendant would hold Ashley in that area while Sedric returned to the living room of the trailer. Taken in the light most favorable to the State, the evidence tends to show that defendant formed a common plan with Sedric to isolate Ashley from the other party guests in order to sexually assault her. Because the evidence supports a theory that defendant acted in concert to kidnap Ashley, the trial court did not err in denying defendant's motion to dismiss the kidnapping charge. Accordingly, this assignment of error is overruled.     Defendant argues that the trial court erred by instructing the jury on the theory of acting in concert. The evidence here clearly supports an inference that defendant acted in concert with Sedric to kidnap and assault Ashley. Therefore, an instruction on acting in concert was appropriate according to the evidence presented.
    Defendant contends that the trial court erred by failing to give a complete and accurate “acting in concert” instruction to the jury. The trial court instructed:
        For a person to be guilty of a crime, it is not necessary that he himself do all of the acts necessary to constitute the crime. If two or more persons join in purpose to commit first degree kidnapping, each of them, if actually or constructively present, is guilty of the crime if the other commits that crime.

The trial court did not give the full text of the pattern jury instruction N.C.P.I. -- Crim. 202.10 (1998). However, the trial court was not required to give the full text. The pattern instruction indicates that the text given by the trial court here is sufficient except “[w]here the participant is being tried for a crime other than the offense that the participants joined together to commit.” Here, defendant was being tried for offenses that the evidence indicated he joined Sedric to commit. Therefore, the parenthetical language was not applicable and the trial court's instruction was sufficient. This assignment of error is overruled.
    For the reasons stated, we find no error.
    No error.
    Judges MARTIN and LEVINSON concur.
    Report per Rule 30(e).

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