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.
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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.
I
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.
II
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.
III
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).
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