STATE OF NORTH CAROLINA
v
.
Wake County
Nos. 00 CRS 35665-66
LAMONT BETHEA,
a/k/a/ LAMONT BETHA
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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