Appeal by defendant from judgments dated 6 December 2002
(See footnote 1)
by
Judge Thomas D. Haigwood in Onslow County Superior Court. Heard in
the Court of Appeals 14 January 2004.
Attorney General Roy Cooper, by Assistant Attorney General M.
Elizabeth Guzman, for the State.
Thomas R. Sallenger for defendant-appellant.
BRYANT, Judge.
Alvin Levarr Anderson (defendant) appeals judgments dated 6
December 2002 entered consistent with a jury verdict finding him
guilty in Onslow County of first-degree kidnapping, assault with a
deadly weapon inflicting serious injury, robbery with a dangerous
weapon of a Chevrolet Celebrity automobile and in Bladen County of
assault with a deadly weapon with intent to kill inflicting serious
injury, attempted first-degree murder, first-degree kidnapping,
robbery with a dangerous weapon, and felonious conspiracy to commit
attempted first-degree murder. Upon motion by defendant, the courtarrested judgment on the Onslow County robbery but denied the same
motion as to the Bladen County first-degree kidnapping.
The evidence at trial showed that, on 21 August 2001,
nineteen-year-old Robert Dinkins, the victim, left the home he
shared with his friend Gregory Wright and Wright's girlfriend
Bonita Bowie in Jacksonville, North Carolina to run some errands.
Dinkins borrowed Wright's 1984 Chevrolet Celebrity in order to pick
up his paycheck and pick up Bowie from work. On the way to pick up
his check, Dinkins saw two young men whom he recognized from Club
108, his former place of employment. Dinkins identified the two
men at trial as defendant and co-defendant Rashawn Hamilton.
Dinkins pulled into the parking lot of the Circle K, whereupon the
two men approached him and asked if he wanted to buy marijuana.
Dinkins told the men he was agreeable to a purchase but did not
have any money at the time.
Dinkins then proceeded to give the two young men a ride to
the house of defendant's mother. On their arrival, Dinkins asked
for a drink of water. Upon entering the house, defendant grabbed
Dinkins from behind and began choking him. Dinkins passed out
briefly. After regaining consciousness and realizing that
defendant was stabbing him in the back, Dinkins tried to escape but
was forced onto the floor by Hamilton. During the struggle,
Dinkins was stabbed in the chest ten to fifteen times. Dinkins
testified that defendant told Dinkins he was a snitch and would die
in that house.
Defendant and Hamilton wrapped Dinkins in blankets, took thecar keys from his pocket, and put Dinkins in the back seat of the
Chevrolet Celebrity. Defendant was the driver of the vehicle and
Hamilton was the front seat passenger. During the journey,
Dinkins tried several times to pull himself up, but each time
Hamilton would swing the knife at his chest. Dinkins testified
that throughout the ride defendant stabbed him in the leg and
threatened to cut his throat. Dinkins further testified that
defendant repeatedly asked Hamilton, “Is he dead yet?”
After a one-and-a-half to two-hour car ride, defendant stopped
the vehicle at an abandoned house in an area later determined to
be Council, North Carolina, a remote section of Bladen County.
Defendant and Hamilton dragged Dinkins through untrimmed vegetation
to the back of the house. Defendant and Hamilton told Dinkins they
would let him live if he agreed to conceal their identities and
tell the police he had been assaulted by a hitchhiker. Dinkins
testified that defendant and Hamilton told him to wait for two
hours at that house and then to go and seek help for his injuries.
Dinkins waited approximately twenty minutes before heading toward
the front of the house to seek help. As Dinkins headed toward the
road he heard the engine of the Chevrolet Celebrity approaching.
Returning to the scene, defendant and Hamilton got out of the
vehicle, and began choking Dinkins and punching him in the face.
Hamilton then stabbed Dinkins in the throat with the knife.
Defendant and Hamilton left in Wright's Chevrolet Celebrity when
Dinkins pretended to be dead.
__________________________
The issues are whether the trial court: (I) erred in denying
defendant's motions to dismiss (A) the charges of robbery with a
deadly weapon in Onslow County and Bladen County, (B) the charges
of first-degree kidnapping in Onslow County and Bladen County, (C)
the charge of attempted first-degree murder in Bladen County; and
(II) committed reversible error in refusing to grant defendant's
motion to arrest judgment on the conviction of first-degree
kidnapping in Bladen County.
I
A
Defendant argues the trial court erred in denying his motions
to dismiss the charges of robbery with a dangerous weapon in Onslow
and Bladen Counties. We note that defendant's argument in his
brief to this Court is restricted to the charge of robbery with a
dangerous weapon in Bladen County, as defendant properly
acknowledges that the trial court arrested judgment on defendant's
Onslow County robbery conviction.
See N.C.R. App. P. 28(a)
(“[q]uestions raised by assignments of error . . . but not then
presented and discussed in a party's brief, are deemed abandoned”).
With respect to the Bladen County robbery charge, defendant argues
that the trial court should have granted his motion to dismiss
because the evidence supported only
one conviction for having
stolen the automobile.
At the close of the State's evidence, defendant moved for the
dismissal of both robbery charges. After the trial court denied
defendant's motion on the Onslow County robbery charge, defendantcontended: “Your Honor, in that case we argue that [the Bladen
County robbery charge] must merge with, or alternatively, . . .
would have to be dismissed because . . . [i]f the Chevrolet
Celebrity had already been taken, it couldn't be taken again.”
Defendant summarily renewed his motions to dismiss at the close of
all the evidence, which the trial court denied.
Accordingly, defendant's motion on the Bladen County robbery
charge was based on double jeopardy considerations.
See State v.
Cobb, 150 N.C. App. 31, 43, 563 S.E.2d 600, 609 (“the
constitutional prohibition against double jeopardy requires that[,
for convictions of both robbery with a dangerous weapon and the
lesser-included offense of felonious larceny,] the defendant [must
have] committed two separate and distinct takings”),
disc. review
denied, 356 N.C. 169, 568 S.E.2d 618 (2002). If the evidence
supported only one taking, i.e. only one robbery in this case,
sentencing defendant for robberies in both Onslow and Bladen
Counties would violate double jeopardy.
See State v. Jordan, 128
N.C. App. 469, 473, 495 S.E.2d 732, 735-36 (1998). Here, however,
the trial court's arresting judgment on the Onslow County robbery
charge thwarted any double jeopardy concerns and in essence
complied with defendant's request to “merge” the charges. As such,
this assignment of error is overruled.
B
Defendant also contends the trial court erred in denying his
motions to dismiss the charges of first-degree kidnapping in Onslow
and Bladen Counties because the evidence was insufficient toconvince a rational trier of fact of defendant's guilt beyond a
reasonable doubt.
N.C. Gen. Stat. § 14-39(a) provides:
Any person who shall unlawfully confine,
restrain, or remove from one place to another,
any other person 16 years of age or over
without the consent of such person, or any
other person under the age of 16 without the
consent of a parent or legal guardian of such
person shall be guilty of kidnapping if such
confinement, restraint, or removal is for the
purpose of . . . (1) facilitating the
commission of any felony or facilitating
flight of any person following the commission
of a felony; or (2) doing serious bodily harm
to or terrorizing the person so confined,
restrained, or removed or any other person.
N.C.G.S. § 14-39(a) (2003). “[I]f the person kidnapped either was
not released by the defendant in a safe place or had been seriously
injured or sexually assaulted, the offense is kidnapping in the
first[-]degree.” N.C.G.S. § 14-39(b) (2003). In
State v. Fulcher,
the North Carolina Supreme Court recognized the possibility that
two or more criminal offenses may arise from the same course of
action.
State v. Fulcher, 294 N.C. 503, 523-24, 243 S.E.2d 338,
351-52 (1978). The Supreme Court also held that a conviction of
kidnapping does not violate the constitutional prohibition against
double jeopardy when the restraint involved constitutes a separate
act independent of and apart from the other felony.
Id. at 524,
243 S.E.2d at 352.
Defendant in the case
sub judice contends the kidnapping
convictions were improper because the victim was not exposed to
greater danger than that which was necessary to commit the offensesof assault with a deadly weapon with intent to kill inflicting
serious injury, assault with a deadly weapon inflicting serious
injury, attempted first-degree murder, and robbery with a dangerous
weapon. Defendant argues that the restraint used by defendant to
commit the robbery against the victim was not a separate, complete
act independent of and apart from the robbery itself.
The evidence presented at trial showed that the keys and
possession of the automobile were taken from Dinkins in Onslow
County after Dinkins had been stabbed repeatedly and seriously
injured by defendant. Defendant then forced Dinkins into the back
seat of the Chevrolet Celebrity and proceeded to drive to Bladen
County. At this point, robbery with a dangerous weapon and assault
with a deadly weapon with intent to kill inflicting serious injury
had already been committed. Dinkins testified that during the car
ride he was stabbed repeatedly and that Hamilton swung the knife at
him every time he tried to get up. This testimony was sufficient
to justify the trial court's denial of defendant's motion to
dismiss the charges of first-degree kidnapping in Onslow County.
Defendant could have simply taken the keys to the vehicle and
driven away. There was no need to remove or restrain the victim in
order to commit the offenses that occurred in Onslow County.
On arrival in Bladen County, defendant took Dinkins to an
abandoned house and left him in the dense vegetation behind the
house. After telling Dinkins to wait two hours before seeking
help, defendant returned approximately twenty minutes later and saw
Dinkins as he attempted to reach the road. Defendant then punchedDinkins several times in the face and stabbed him in the throat
before once again moving him to the back of the abandoned house and
leaving him for dead in the dense vegetation.
This Court has held that evidence which shows a defendant
increased the victim's helplessness and vulnerability beyond what
was necessary to enable the robbery is sufficient to support a
kidnapping charge.
State v. Muhammad, 146 N.C. App. 292, 295, 552
S.E.2d 236, 237 (2001). In the instant case, defendant's actions
in Bladen County had the effect of increasing Dinkins' helplessness
and vulnerability far beyond that which was necessary to commit the
robbery. In addition, the evidence established there was a removal
of Dinkins that occurred in Bladen County. Thus, the evidence
presented was also sufficient to support the trial court's denial
of defendant's motion to dismiss the charge of kidnapping in Bladen
County.
C
Defendant next challenges the trial court's denial of his
motion to dismiss the charge of attempted first-degree murder.
Defendant argues the evidence was insufficient to support the
charge because there was no reasonable inference that defendant
attempted to kill the victim. We disagree.
“A person commits the crime of attempted first-degree murder
if he specifically intends to kill another person unlawfully; he
does an overt act calculated to carry out that intent, going beyond
mere preparation; he acts with malice, premeditation, and
deliberation; and he falls short of committing the murder.”
Statev. Cozart, 131 N.C. App. 199, 202-03, 505 S.E.2d 906, 909 (1998).
In the context of attempted first-degree murder, malice can be
inferred by the intentional use of a deadly weapon.
State v.
Peoples, 141 N.C. App. 115, 118, 539 S.E.2d 25, 28 (2000).
Premeditation has been defined as thought beforehand for some
length of time, no matter how short.
State v. Chavis, 231 N.C.
307, 311, 56 S.E.2d 678, 681 (1949). Deliberation means that the
act is done in a cool state of blood in furtherance of a fixed
design to gratify a feeling of revenge or to accomplish some
unlawful purpose, and does not mean brooding over the act or
reflecting upon it for any appreciable length of time.
Id. As to
attempted first-degree murder, circumstances
that may tend to prove premeditation and
deliberation include: (1) lack of provocation
by intended victim; (2) conduct and statements
of the defendant both before and after the
attempted killing; (3) threats made against
the intended victim or victims by the
defendant; and (4) ill will or previous
difficulty between the defendant and the
intended victim or victims.
Cozart, 131 N.C. App. at 202, 505 S.E.2d at 909.
In the present case, the evidence was more than sufficient to
support a reasonable inference that defendant intended to kill
Dinkins. Defendant's intent to kill Dinkins can be inferred from
his stabbing Dinkins ten to fifteen times in the chest, slitting
his throat twice, stabbing him in the back and legs, and punching
him in the face repeatedly. In addition, the fact that defendant
drove a badly injured man for two hours to an abandoned house
thereafter leaving him in the dense vegetation without making anyattempt to seek medical attention could also lead to an inference
that defendant intended to kill Dinkins. Further, the evidence
tended to show that defendant threatened to kill Dinkins several
times during the ordeal and that during the car ride to Bladen
County, defendant asked Hamilton whether or not Dinkins was dead
yet.
Defendant nevertheless asserts that any overt act he may have
committed was done in self-defense. As any “contradictions and
discrepancies are for the jury to resolve and do not warrant
dismissal,”
State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61
(1991), this argument is immaterial with regard to a motion to
dismiss.
II
Finally, defendant argues the trial court committed reversible
error by failing to grant his motion to arrest judgment on the
Bladen County first-degree kidnapping conviction. Defendant
contends that he has been punished twice for committing the same
offense in violation of the double jeopardy provisions of the Fifth
Amendment of the United States Constitution. We disagree.
A motion to arrest judgment “'is proper when it is apparent
that no judgment could be lawfully entered because of some fatal
error appearing in (1) the organization of the court, (2) the
charge made against the defendant . . . , (3) the arraignment and
plea, (4) the verdict, or (5) the judgment.'”
State v. McGaha, 306
N.C. 699, 702, 295 S.E.2d 449, 451 (1982) (citation omitted). A
“[j]udgment may be arrested when and only when some fatal error ordefect appears on the face of the record proper.”
State v. McNeil,
280 N.C. 159, 162, 185 S.E.2d 156, 158 (1971). Further, “[r]eview
is ordinarily limited to the questions of whether an error of law
appears on the face of the record proper and whether the judgment
is regular in form.”
Id.
In this case, defendant argues Dinkins did not regain his free
will until after the entire episode was over and therefore the
kidnapping was one continuous action starting in Onslow County and
ending in Bladen County. For the same reason that we have found
two separate acts of kidnapping as explained in Issue I on
defendant's motion to dismiss the kidnapping charges, we overrule
this assignment of error.
No error.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
Footnote: 1