State v Dawkins, (03-702) 06/15/2004

Appeal by defendant from judgments entered 1 November 2002 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 3 March 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Jeffrey B. Parsons, for the State.

Hosford & Hosford, P.L.L.C., by Sofie W. Hosford, for defendant-appellant.

GEER, Judge.

Defendant Bakeer Deshawn Dawkins appeals from his convictions of two counts of first degree kidnapping and two counts of attempted robbery with a dangerous weapon. Defendant argues primarily that the trial court erred in denying his motions to dismiss on the ground that a fatal variance existed between the indictments and the proof at trial. We hold that the trial court properly denied the motions to dismiss because there was no variance as to the essential elements of the crimes. Defendant also contends that the trial court erred with respect to certain evidentiary issues and jury instructions. Our review of the record reveals no error.

    The State's evidence tended to show the following. On 3 August 2000, defendant telephoned Yukkya Jackie Hall to ask whether she could supply him with crack cocaine to assist him in completing a $1400.00 drug deal. Hall told him that she did not have the cocaine, but could probably get it. When defendant and a second person, Kiyona Brown, arrived at Hall's mobile home, William Pippins was also there. Pippins is physically disabled and normally uses crutches or a wheelchair. About fifteen minutes after defendant and Brown arrived, Hall paged a friend to inquire about the cocaine. While waiting for the return page, defendant went out to his van, saying he was going to get cigarettes.
    When defendant returned, he was holding a bag, a gun, and some duct tape. He twice said "this is a stick up" and laughed. When Hall told him "to stop playing," he said he was not playing and demanded crack cocaine. Hall told him that she had a little bit in her wallet. Defendant then pointed his gun at Pippins and said, "[W]here it at. The money." When Pippins responded that he did not have any money, defendant searched Pippins' pockets. Defendant then instructed Brown to bind Hall and Pippins with duct tape and put them in the van. After taping their hands and placing tape over Pippins' mouth, Brown dragged Pippins to the van. Hall broke away and ran to a neighboring home where the neighbor called the police.
    Meanwhile, defendant and Brown drove away with Pippins. When defendant saw a police car behind him, he removed the tape fromPippins' hands and mouth and left him on the side of the road. It was 1:30 a.m. and raining, and Pippins had neither his crutches nor his wheelchair.
    When questioned by the police, Hall told them that a person had come to her home, asked to use the telephone, and then had pulled out a gun to try to rob her. She testified that she did not tell the police that defendant had demanded cocaine from her because she was afraid the police would search her and find cocaine.
    Defendant was indicted on two counts of first degree kidnapping and two counts of attempted robbery with a dangerous weapon. A jury convicted him of all four charges. After hearing evidence of aggravating factors, the trial judge sentenced defendant in the aggravated range to two consecutive terms of imprisonment of 167 to 210 months followed by two more consecutive terms of 146 to 185 months. Defendant appealed from all four convictions.

    Defendant first argues that the trial court erred in denying his motions to dismiss because a fatal variance existed between the indictments and the proof at trial. "It is the settled rule that the evidence in a criminal case must correspond with the allegations of the indictment which are essential and material to charge the offense." State v. McDowell, 1 N.C. App. 361, 365, 161 S.E.2d 769, 771 (1968). A variance occurs when the allegations in an indictment do not conform to the evidence actually presented attrial. State v. Norman, 149 N.C. App. 588, 594, 562 S.E.2d 453, 457 (2002). A variance is not, however, material _ and therefore is not fatal _ if it does not involve an essential element of the crime charged. Id.
    A.    Robbery Indictments
    The indictments charging defendant with attempted robbery alleged that he "did steal, take, and carry away and attempt to steal, take, and carry away another's personal property, U.S. Currency" from Pippins and Hall. Defendant argues that the evidence at trial proved that defendant demanded crack cocaine rather than money, as alleged in the indictments.
    For this variance to be fatal, the precise identity of the personal property must be an essential element of the crime of armed robbery. Our Supreme Court has held otherwise. In State v. Owens, 277 N.C. 697, 700, 178 S.E.2d 442, 444 (1971) (emphasis original), overruled on other grounds by State v. Hurst, 320 N.C. 589, 359 S.E.2d 776 (1987), the Supreme Court held:
        The force or intimidation occasioned by the use or threatened use of firearms is the main element of the offense. In such a case, it is not necessary or material to describe accurately or prove the particular identity or value of the property, provided the indictment shows that the property was that of the person assaulted or under his care, and that such property is the subject of robbery and that it had some value.

Likewise, in State v. Guffey, 265 N.C. 331, 333, 144 S.E.2d 14, 16 (1965), the Court stated, "We have said in a number of cases that in an indictment for robbery the kind and value of the property taken is not material _ the gist of the offense is not the taking,but a taking by force or putting in fear." Therefore, since the particular identity of the property sought to be taken is not a material element of the offense of armed robbery (or, therefore, of attempted armed robbery), the fact that the indictments referred to attempted robbery of money while the evidence addressed cocaine is not fatal. See also State v. McCree, 160 N.C. App. 19, 31, 584 S.E.2d 348, 356, appeal dismissed and disc. review denied, 357 N.C. 661, 590 S.E.2d 855 (2003) (trial court did not err in refusing to dismiss charge of armed robbery when the indictment alleged that the defendant took from the victim a wallet, a television, and a VCR, while the evidence tended to prove he took $50.00 from the victim).
    In any event, Pippins testified at trial that defendant pointed a gun at him and said, "[W]here it at. The money." With respect to the indictment for attempted robbery of Pippins, there thus does not appear to be any variance, let alone a fatal variance, between the indictment and the proof at trial. The trial court properly denied the motion to dismiss as to the armed robbery indictments.
    B.    Kidnapping Indictments
    The indictments charging defendant with two counts of first degree kidnapping alleged that he kidnapped each of the victims "for the purpose of facilitating the commission of a felony, to wit: attempted armed robbery." Defendant argues that the proof at trial showed that any attempted robbery was complete before he and his accomplice bound the victims' hands and removed them fromHall's trailer. Therefore, he argues, the evidence at trial did not support the State's theory that the kidnappings were committed to facilitate the attempted armed robberies.
    Our Supreme Court has already rejected an identical argument in State v. Hall, 305 N.C. 77, 286 S.E.2d 552 (1982), overruled on other grounds by State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986). In Hall, like here, the indictment alleged that the defendant had kidnapped the victim to facilitate the commission of the offense of armed robbery. The evidence showed that the defendant and a co-defendant robbed a service station at gunpoint. After emptying the cash register and taking $40.00 from the station's night attendant, the defendant forced the attendant into his car, drove him nearly five miles, and left him on the side of Interstate 95. Id. at 79-80, 286 S.E.2d at 554-55. The defendant argued that since the evidence showed that the crime of armed robbery was complete at the time the victim was taken from the service station, the kidnapping was for the purpose of facilitating flight, not for the purpose of facilitating armed robbery, and therefore, there was a fatal variance between the indictment and proof. The Supreme Court disagreed:
        Although defendant contends that the crime was "complete" when [his co-defendant] pointed his pistol at [the victim] and attempted to take property by this display of force, the fact that all essential elements of a crime have arisen does not mean the crime is no longer being committed. That the crime was "complete" does not mean it was completed.
Id. at 82-83, 286 S.E.2d at 555-56. As a result, the Court held that there was "no variance between indictment and proof[.]" Id. at 83, 286 S.E.2d at 556.
    This case is indistinguishable from Hall. Accordingly, there was no fatal variance between the indictments for kidnapping and the proof at trial and the trial court properly denied the motion to dismiss.

Defendant also argues that because the purpose of the kidnapping (attempted robbery of the victims) had been accomplished by the time defendant and the victims left Hall's trailer, the jury should have been instructed on the lesser included offense of false imprisonment. "[W]hen the defendant denies having committed the complete offense for which he is being prosecuted, and evidence is presented by the State of every element of the offense, and there is no evidence to negate these elements other than the defendant's denial that he committed the offense, then no lesser included offense need be submitted." State v. Shaw, 106 N.C. App. 433, 439, 417 S.E.2d 262, 266, disc. review denied, 333 N.C. 170, 424 S.E.2d 914 (1992).
To prove the crime of first degree kidnapping, the State must show an unlawful, nonconsensual restraint, confinement, or removal from one place to another for the purpose of committing or facilitating the commission of one of certain statutorily- enumerated acts. State v. Pratt, 152 N.C. App. 694, 699-700, 568 S.E.2d 276, 280 (2002), appeal dismissed and cert. denied, 357 N.C.168, 581 S.E.2d 442 (2003). Here, as discussed above, the State offered evidence of every element of the offense of first degree kidnapping. As defendant acknowledges, he offered only a general denial that he committed the offense. He presented no evidence negating any element of the offense. Accordingly, defendant was not entitled to an instruction on the lesser included offense of false imprisonment.

    Defendant next argues that the trial court erred in allowing State's witness Derrick Young, whom defendant met in jail, to testify as to statements defendant made to him about being a drug dealer in Greenville. Over defendant's general objection, Young testified: "[Defendant] said that he sold drugs in Greenville. He supplied a lot of people in Greenville and [was] supposed to be [a] big drug dealer. And I'm telling him that I never heard of him so I don't think he is [a] big dealer." When Young attempted to elaborate on this testimony, the trial court sustained defense counsel's objection.
    Defendant argues first that admission of this testimony violated various rights under the North Carolina and United States constitutions. Defendant did not, however, raise his constitutional arguments at trial or in his assignment of error and has, therefore, not properly preserved them for review. State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988) (constitutional questions not raised and decided at trial will ordinarily not be considered on appeal).    Defendant also argues that the testimony was inadmissible under Rule 401 of the Rules of Evidence on grounds of relevance and that the testimony should have been excluded, in any event, under Rule 403 as being unduly prejudicial. We note that defendant does not make any argument that the evidence was inadmissible under Rule 404(b).
    Rule 401 of the Rules of Evidence provides that "'[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Defendant's defense amounted to a claim that what occurred was actually only a prank and not a true armed robbery and kidnapping; defendant claimed that he had no intent to commit any crime. Young's testimony regarding defendant's self-description of being a drug dealer countered this defense by making "more probable" Hall's claim that the purpose behind defendant's visit to Hall's trailer was to obtain crack cocaine to close a $1,400.00 drug deal. See State v. Ligon, 332 N.C. 224, 235, 420 S.E.2d 136, 142 (1992) (evidence that defendant dealt drugs properly admitted to show motive where State contended victim was shot when he tried to steal cocaine from defendant).
    Defendant argues alternatively that even if the evidence was relevant, that relevance was outweighed by the evidence's prejudicial effect. "The responsibility to determine whether the probative value of relevant evidence is outweighed by its tendency to prejudice the defendant is left to the sound discretion of thetrial court." State v. Alston, 341 N.C. 198, 231, 461 S.E.2d 687, 704 (1995), cert. denied, 516 U.S. 1148, 134 L. Ed. 2d 100, 116 S. Ct. 1021 (1996). Here, evidence that defendant was involved in drug dealing had already been admitted. Hall testified without objection that both she and defendant sold cocaine and that defendant had sold cocaine to Pippins. See State v. Hyder, 100 N.C. App. 270, 277, 396 S.E.2d 86, 90 (1990) (no prejudice where challenged testimony is substantially similar to previous testimony admitted without objection). Indeed, since the whole theory of the State's case was that defendant was trying to close a $1,400.00 drug deal, Young's testimony confirming that defendant considered himself to be a drug dealer was not unfairly prejudicial. State v. Ward, 354 N.C. 231, 264, 555 S.E.2d 251, 272 (2001) ("Evidence that is probative of the State's theory of the case will necessarily be prejudicial to the defendant."). The trial court, therefore, did not abuse its discretion in admitting Young's testimony.

    Defendant also argues that the trial court erred in allowing the State's motion to insert the word "voluntarily" into the pattern jury instruction for first degree kidnapping so that it required the jury to find "that the person was not voluntarily released in a safe place by the defendant, or by someone with whom he was acting in concert." (Emphasis added) Our Supreme Court rejected this argument in State v. Jerrett, 309 N.C. 239, 307 S.E.2d 339 (1983).     In Jerrett, the trial court had instructed the jury that " if you find that the defendant did not release [the victim], that is let her go voluntarily in a safe place and you find those other elements, that would be first degree kidnapping. " Id. at 262, 307 S.E.2d at 351 (emphasis original). The defendant contended the addition of the word "voluntarily" was error. The Supreme Court disagreed, reasoning:
            While it is true that G.S. 14-39(b) does not expressly state that defendant must voluntarily release the victim in a safe place, we are of the opinion that a requirement of "voluntariness" is inherent in the statute. G.S. 14-39(b) provides that in order for the offense to constitute kidnapping in the second degree, the person kidnapped must be released "in a safe place by the defendant . . ." (emphasis added). This implies a conscious, willful action on the part of the defendant to assure that his victim is released in a place of safety.

            We further note that defendant's argument is more theoretical than real for it is difficult to envision a situation when a release of the victim by the defendant could be other than voluntary. It seems the defendant would either release the victim voluntarily, or the victim would reach a place of safety by effecting an escape or by being rescued.

Id. (emphasis original).
    The instruction contended to be error in this case is materially indistinguishable from that approved by our Supreme Court in Jerrett. Accordingly, this assignment of error is overruled.

    No error.
    Chief Judge MARTIN and Judge HUDSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***