An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1120


Filed: 1 June 2004


     v.                        Robeson County
                            Nos.    01 CRS 56741, 56745,
                                and 02 CRS 4427

    Appeal by defendant from judgments dated 4 April 2003 by Judge William C. Gore, Jr. in Robeson County Superior Court. Heard in the Court of Appeals 12 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Lauren M. Clemmons, for the State.

    William H. Dowdy, for defendant-appellant.

    BRYANT, Judge.

    Jason Angelo Acosta (defendant) appeals judgments dated 4 April 2003 entered consistent with a jury verdict finding him guilty of common law robbery, two counts of second-degree kidnapping for the purpose of terrorizing the victims, and non- felonious breaking and/or entering.
    The evidence at trial presented by the State tends to show that, between approximately 3:00 a.m. and 3:30 a.m. on 28 December 2001, Tommy Lawrence Brixey (“Lawrence”) heard knocking at the front door of the mobile home he shared with his brother, Christopher Scott Brixey (“Scott”). Lawrence looked out the window but did not see anyone. After mentioning the knocking to Scott, the two brothers went back to sleep. At approximately 4:00a.m. to 4:30 a.m., Scott awoke to see two men, whom he later identified as their former housemates defendant and Matthew Sampson, standing over him. Each man was holding a knife to Scott's throat. Defendant asked, “What you all got?” and proceeded to rummage through Scott's dresser and took some clothes. Defendant also opened a speaker in which Scott had kept money in the past. In response to defendant's demand for Scott's wallet, Scott, with defendant's permission, removed his driver's license, social security card, and business cards, and then handed defendant his wallet which contained $350.00 in cash.
    Defendant and Sampson accompanied Scott to his brother's bedroom. After awakening Lawrence, defendant and Sampson took cash out of his wallet and a chain from his dresser. Defendant asked the brothers about compact discs in Scott's truck, whereupon defendant and Sampson escorted the two brothers outside. When defendant asked for the amplifier in Scott's truck, Scott pulled the wires out and handed the amplifier to defendant.
    Thereafter, the four men returned to the house. Once inside, defendant and Sampson “made sure that Lawrence locked the door” and directed the brothers into the kitchen. There, defendant struck Scott's face, drawing blood. Defendant instructed Scott to sit in a chair. Defendant hit Scott on the right side, and Sampson hit Scott on the left side approximately four to five times. The final blow knocked Scott out of the chair. As Scott attempted to get up off the floor, defendant kicked and hit him in the back of the head with a beer bottle, causing Scott to lose consciousness. Defendantand Sampson also beat Lawrence. Defendant broke a glass lampshade over Lawrence's head and struck Lawrence's knees with the lamp stand. Thereafter, defendant ordered the brothers to clean up their blood. When the brothers refused, defendant beat the brothers again and refused to leave until the brothers had cleaned up their blood. Once the brothers had complied with the demand, defendant and Sampson departed. Both brothers were taken to an emergency room for treatment.


    The issues are whether the trial court erred in failing to dismiss the charges of: (I) second-degree kidnapping; (II) misdemeanor breaking or entering; and (III) common law robbery.

    Defendant's three assignments of error challenge the denial of his motions to dismiss each charge. In deciding a motion to dismiss, the court must consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Contradictions and discrepancies in the evidence are to be disregarded and left for resolution by the jury. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). The trial court determines whether there is substantial evidence to establish each essential element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). “The trial court's function is to determine whether the evidencewill permit a reasonable inference that the defendant is guilty of the crimes charged.” State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991).
    The statute that defines the crime of kidnapping provides:
            (a) 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 . . . shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:
                (1)    Holding such other person for a ransom or as a hostage or using such other person as a shield; or
                (2)    Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; or
                (3)    Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person; or
                (4)    Holding such other person in involuntary servitude in violation of G.S. 14-43.2.

N.C.G.S. § 14-39(a) (2003). The indictments in the instant case charged defendant with restraining the Brixey brothers for the purpose of facilitating the commission of larceny or terrorizing the two brothers. Defendant argues the State presented insufficient evidence of restraint separate from that inherent in the robbery of the brothers.
    The term “restrain,” as this Court has noted in connection with N.C. Gen. Stat. § 14-39, “connotes restriction by force, threat or fraud with or without confinement.” State v. Brayboy, 105 N.C. App. 370, 375, 413 S.E.2d 590, 593 (1992). If the restraint is an inherent or inevitable part of some other chargedfelony, such as armed robbery or rape, a separate conviction of kidnapping may not be obtained. State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). In determining whether or not the restraint is inherent in another charged offense, a key factor is whether the restraint exposed the victim to greater danger than inherent in the robbery itself or “the kind of danger and abuse the kidnapping statute was designed to prevent.” State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981).
    In this case, the robbery was complete when defendant took possession of the brothers' money and other personal items; however, instead of leaving immediately after the robbery, defendant forced the brothers to return to the residence. After defendant ensured that Lawrence had locked the door, he proceeded to beat the two brothers with his hands, a beer bottle, a lampshade, and a lamp stand. Defendant thereby exposed the two brothers to additional danger not inherent in the robbery and subjected them to the type of abuse the kidnapping statute was designed to prevent. Accordingly, this assignment of error is overruled.

    Defendant next contends the evidence was insufficient to support the conviction of misdemeanor breaking or entering because the evidence failed to show a breaking or wrongful entry. We disagree.
    Misdemeanor breaking or entering requires proof of only the wrongful breaking or entry into a building or dwelling. State v.Freeman, 307 N.C. 445, 451, 298 S.E.2d 376, 380 (1983). It is not necessary to prove both breaking and entering, only one or the other. State v. Myrick, 306 N.C. 110, 114, 291 S.E.2d 577, 579 (1982). A jury could find defendant committed the offense based upon evidence that defendant entered the residence without the consent of the two brothers. Moreover, we note that defendant requested submission of misdemeanor breaking or entering to the jury. See N.C.G.S. § 15A-1443(c) (2003) (“[a] defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct”). The trial court therefore did not err in denying defendant's motion to dismiss as to this charge.

    Finally, defendant contends that the evidence was insufficient to support the conviction of common law robbery because there was no evidence defendant forcibly or wrongfully took property from the brothers. This contention is without merit.
    Common law robbery consists of the taking of money or personal property from another by means of violence or by placing another in fear. State v. Smith, 305 N.C. 691, 700, 292 S.E.2d 264, 270 (1982). The State's evidence shows that defendant, wielding a knife, took money and other personal property belonging to the brothers. Thus, the evidence was clearly sufficient to withstand defendant's motion.
    No error.
    Chief Judge MARTIN and Judge McGEE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***