Appeal by defendant from judgment entered 29 October 2003 by
Judge Quentin T. Sumner in Nash County Superior Court. Heard in
the Court of Appeals 10 January 2005.
Attorney General Roy Cooper,
by Assistant Attorney General
Wallace Finlator, Jr.
, for the State.
Marilyn G. Ozer for defendant-appellant.
Defendant Theodore Pittman, Jr. appeals his conviction of
first degree kidnapping of a child, conspiracy to commit
kidnapping, and attempted first degree murder of the child.
Defendant argues on appeal primarily (1) that the State failed to
present sufficient evidence that defendant had a specific intent to
kill the child and (2) that the trial court committed plain error
in admitting testimony that defendant had failed to answer the
mother's questions regarding why he had taken the child. We hold
that the State's evidence was sufficient to defeat a motion to
dismiss when it tended to show that, in order to avoid paying child
support, defendant, in 30-degree weather, abandoned an infant in a
remote, dilapidated shed where she would not likely be found. We
further hold that since the record contains no evidence that the
mother's inquiries were instigated by the State, they did not
constitute custodial interrogation and, therefore, the mother could
permissibly testify about defendant's failure to respond to herquestions. Although we conclude that defendant received a trial
free of prejudicial error, we agree with defendant's subsequently
filed motions for appropriate relief that the trial court erred
under Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124
S. Ct. 2531 (2004) in imposing an aggravated sentence. We,
therefore, remand for a new sentencing hearing in accordance with
State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005).
The State's evidence tended to show the following. Daquana
Battle testified that defendant was the father of her six-week-old
daughter. When Battle told defendant that she was pregnant, he
told her that he did not want to go to court, but that "he would
pay out of his pocket like he did with his other kids" and that
"whenever [she] needed something just to call and he would get it
to [her]." After the baby was born, however, Battle's mother told
defendant that she was going to take him to court to force him to
make child support payments.
David Parker, defendant's former roommate, testified that on
4 November 2002, defendant asked him to help take the baby from
Battle. Parker believed that defendant wanted to avoid paying
child support. Defendant told Parker that he would get Battle to
leave her house by calling her on the phone and that Parker could
then go into the house and take the child. After defendant
promised to "take care" of Parker, Parker agreed to the plan.
Defendant and Parker drove to Battle's house. Battle and her
daughter were lying in bed when defendant called and asked if hecould talk to Battle about a Christmas present for the baby.
Battle walked outside to talk with defendant, leaving her daughter
on the bed. The conversation lasted for about 10 to 15 minutes.
During that time, Parker entered the house, went into the bedroom,
picked up the baby, and left the house by the back door while
holding the baby underneath his jacket. As Battle started to go
back inside her house, defendant blew his car horn _ the agreed-
upon sign to let Parker know Battle was returning. At the sound of
the horn, Battle turned around, but defendant looked as if he was
motioning to someone else.
Battle then turned back towards the house and saw Parker
running from the back door towards defendant's car with "his arms
balled up." When Parker saw Battle he changed direction and
started running toward the backyard. After Battle went back
inside, defendant telephoned her again and explained that he had
been honking at his cousin. While on the phone, Battle realized
her daughter was missing and told defendant. After defendant asked
her not to call the police or her mother because he had "to drop
this dope off," Battle waited 20 minutes and then called both the
police and her mother.
In the meantime, Parker had walked with the baby back to his
house where he met defendant. The two men then drove with the baby
to a house owned by Stan Dempsey that was located in the country,
a few miles south of Rocky Mount. When they arrived at Dempsey's
house, defendant knocked on the door, but there was no answer.
Defendant told Parker to take the child to an unheated shed locatedapproximately 100 yards from the house. The shed had partially
collapsed and there were shrubs and trees growing all around it.
Inside, the shed was full of trash, debris, broken glass, and
bottles, and the ceiling rafters had come down and were leaning.
Parker left the child in the center of the shed. As defendant and
Parker were leaving, Dempsey walked outside. Defendant told
Dempsey that he would return later. Later that morning, defendant
called Dempsey and told him that "he might need [Dempsey] to cover
When Edward Collins of the Rocky Mount Police Department
responded to Battle's call, Battle told him that defendant was
angry about the prospect of paying child support because he already
had other children and did not need additional financial
responsibilities. Defendant subsequently returned to Battle's
house. During Collins' interview of defendant, defendant showed no
"outward emotion" and claimed he did not know that the baby was
missing. Defendant and Battle then went to ask Parker to return to
Battle's house, but when Parker saw the police, he left
That evening, the police arrested Parker, who admitted that he
had helped defendant take the baby from Battle's house. Following
defendant's arrest, defendant claimed he did not know why Parker
would implicate him. Defendant continued to deny any type of
involvement in the baby's disappearance. At some point on the
evening of 4 November 2002, defendant called Dempsey and said that
"Parker had got [defendant] in some trouble." Two days later, Dempsey called the Rocky Mount Police
Department after reading a story about a baby being kidnapped
accompanied by defendant's and Parker's pictures. Dempsey told
Detective Mike Lewis that he had seen defendant and Parker at his
house on the morning of 4 November 2002. After talking with
Dempsey, Detective Lewis began searching and found the baby lying
on some dirt behind a pile of trash in the shed. The child's mouth
and nose were covered with a towel tied in a knot and she did not
have a jacket or coat. During the two days that the child was
missing, it had rained and the temperature had dropped into the
30s. At first, the officers thought the baby was dead, but they
rushed her to the hospital once they realized she was still alive.
On 13 January 2003, defendant was indicted on one count of
attempted first degree murder, one count of first degree
kidnapping, and one count of felony conspiracy. At trial,
defendant testified on his own behalf. According to defendant,
Parker told defendant at 3:30 a.m. on the day the baby disappeared
(1) that he owed a large amount of money to Jamaican drug dealers
and needed help and (2) that Battle's mother had threatened to go
to the police about Parker's sexual activity with Battle's younger
sister. Defendant testified that he did not see Parker until later
that day when he and Battle asked Parker to come to the house to
help look for the baby. Defendant claimed that he learned the
child was missing when he was driving to Dempsey's house to "cook
cocaine." Defendant denied any part in the kidnapping andtestified he thought Parker took the baby because Parker was mad at
defendant for moving out and leaving him to pay the bills.
The jury found defendant guilty on all three counts. During
sentencing, the trial judge found as an aggravating factor that the
victim was very young and found as mitigating factors that
defendant had been honorably discharged from the armed services,
had supported his family, and had a support system in the
community. The judge determined that the aggravating factor
outweighed the mitigating factors and sentenced defendant in the
aggravated range to consecutive sentences of 196 to 245 months on
the attempted murder conviction, 92 to 120 months on the first
degree kidnapping conviction, and 80 to 105 months on the
conspiracy conviction. Defendant timely appealed and, while this
case was pending on appeal, filed two motions for appropriate
relief based on Blakely
 Defendant first assigns error to the trial court's denial
of his motion to dismiss, arguing that the State presented
insufficient evidence that defendant had a specific intent to kill
the child. When considering a motion to dismiss for insufficient
evidence, the trial court must determine whether the State has
presented substantial evidence of every essential element of the
crime and that the defendant was the perpetrator. State v.
, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied
U.S. 1006, 154 L. Ed. 2d 404, 123 S. Ct. 488 (2002). "'Substantial
evidence is such relevant evidence as a reasonable mind mightaccept as adequate to support a conclusion.'" State v. Matias
N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Brown
310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984)). The evidence must
be viewed "in the light most favorable to the State, giving the
State the benefit of every reasonable inference and resolving any
contradictions in its favor." State v. Rose
, 339 N.C. 172, 192,
451 S.E.2d 211, 223 (1994), cert denied
, 515 U.S. 1135, 132 L. Ed.
2d 818, 115 S. Ct. 2565 (1995).
The elements of attempted first degree murder are: "(1) a
specific intent to kill another; (2) an overt act calculated to
carry out that intent, which goes beyond mere preparation; (3)
malice, premeditation, and deliberation accompanying the act; and
(4) failure to complete the intended killing." State v. Tirado
358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004), cert. denied sub
nom. Queen v. North Carolina
, __ U.S. __, 161 L. Ed. 2d 285, 125 S.
Ct. 1600 (2005). Rather than simply showing that a defendant
committed an intentional act that could have resulted in death, the
State "must show that the defendant intended for his action to
result in the victim's death." State v. Keel
, 333 N.C. 52, 58, 423
S.E.2d 458, 462 (1992). Defendant argues only that the State
failed to present sufficient evidence of a specific intent to kill.
Because the intent to kill involves a state of mind,
"'ordinarily it must be proved, if proven at all, by circumstantial
evidence, that is, by proving facts from which the fact sought to
be proven may be reasonably inferred.'" State v. Alexander
N.C. 182, 188, 446 S.E.2d 83, 86-87 (1994) (quoting State v.Ferguson
, 261 N.C. 558, 561, 135 S.E.2d 626, 629 (1964)).
"Moreover, an assailant 'must be held to intend the natural
consequences of his deliberate act.'" State v. Grigsby
, 351 N.C.
454, 457, 526 S.E.2d 460, 462 (2000) (quoting State v. Jones
N.C. App. 531, 534, 197 S.E.2d 268, 270, cert. denied
, 283 N.C.
756, 198 S.E.2d 726 (1973)).
After reviewing the record, we hold that the State presented
sufficient evidence that defendant possessed the specific intent to
kill the child. The State offered evidence that defendant left a
six-week-old baby with a towel knotted around her face in a
collapsing shed some distance from the nearest house with
temperatures in the 30-degree range. During the next two days,
defendant did nothing to retrieve the child or assure her discovery
by others. A jury could reasonably infer from this evidence that
defendant did not intend for anyone to find or hear the child and
that he intended her to die from exposure or lack of food and
hydration. The State also offered evidence that defendant acted in
order to avoid paying child support, a goal that a jury could
reasonably infer could only be ensured by the death of the child.
Based upon this circumstantial evidence, the trial court properly
denied the motion to dismiss. See, e.g.
, State v. Evangelista
N.C. 152, 158-59, 353 S.E.2d 375, 380-81 (1987) (holding that the
evidence was sufficient to prove a specific intent to kill when the
defendant barricaded himself in a railroad compartment with an
eight-month-old infant, the defendant was warned that the child
would dehydrate without water, and the defendant nonethelessconsistently prevented attempts to provide the child with water for
three days); State v. Edwards
, 174 N.C. App. __, __, __ S.E.2d __,
__, No. COA04-1504, 2005 N.C. App. LEXIS 2487 (Nov. 15, 2005)
(holding that evidence of a specific intent to kill was sufficient
when, during the summer, the defendant left a baby in the sun in a
remote location where he was unlikely to be found).
Defendant's arguments regarding alternative interpretations of
the evidence present questions of fact for the jury and do not
support dismissal. This assignment of error is, therefore,
 Defendant next contends that the trial court committed
plain error in allowing Battle to testify regarding defendant's
failure to respond to questions she asked him in letters. While
defendant was awaiting trial, Battle wrote letters to defendant
asking him why he had kidnapped their daughter. Battle testified
that although defendant replied to the letters, he never answered
the questions. Defendant argues that this testimony impermissibly
referenced defendant's invocation of his right to remain silent
warnings had been given.
It is well established that "a defendant's exercise of his
constitutionally protected rights to remain silent and to request
counsel during interrogation may not be used against him at trial."
State v. Elmore
, 337 N.C. 789, 792, 448 S.E.2d 501, 502 (1994). As
the United States Supreme Court first held in Doyle v. Ohio
U.S. 610, 618, 49 L. Ed. 2d 91, 98, 96 S. Ct. 2240, 2245 (1976),the Miranda
warnings contain an implicit assurance to a person who
is given them that he will not be penalized for his post-arrest
silence. "In such circumstances, it would be fundamentally unfair
and a deprivation of due process to allow the arrested person's
silence to be used to impeach an explanation subsequently offered
at trial." Id.
The rule set out in Elmore
does not, however, apply
to the facts of this case. Battle's testimony did not reference
any silence of defendant in response to questioning by law
's protections apply only when "a defendant is
subject to custodial interrogation." State v. Barden
, 356 N.C.
316, 337, 572 S.E.2d 108, 123 (2002), cert. denied
, 538 U.S. 1040,
155 L. Ed. 2d 1074, 123 S. Ct. 2087 (2003). "Custodial
interrogation" refers to "'questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.'" State
, 147 N.C. App. 94, 101, 555 S.E.2d 294, 300 (2001)
(quoting State v. Clay
, 297 N.C. 555, 559, 256 S.E.2d 176, 180
(1979), rev'd on other grounds by State v. Davis
, 305 N.C. 400, 290
S.E.2d 574 (1982)). Miranda
is not implicated when a person is
questioned by someone who is neither a law enforcement officer nor
acting as an agent of law enforcement. State v. Powell
, 340 N.C.
674, 687, 459 S.E.2d 219, 225 (1995) (concluding that no violation
occurred when private individuals, not acting as agents
of the police, tape-recorded the defendant), cert. denied
, 516 U.S.
1060, 133 L. Ed. 2d 688, 116 S. Ct. 739 (1996); In re Phillips
, 128N.C. App. 732, 735, 497 S.E.2d 292, 294 ("[F]ree and voluntary
statements made without Miranda
warnings to private individuals
unconnected with law enforcement are admissible at trial."), disc.
, 348 N.C. 283, 501 S.E.2d 919 (1998). Since the
questions in this case were posed by Battle and the record contains
no indication that Battle was acting at the behest of law
enforcement, defendant's silence was not in response to a custodial
interrogation. Accordingly, admission of testimony regarding that
silence did not violate the assurances set out in the Miranda
warnings. See State v. Mitchell
, 317 N.C. 661, 667, 346 S.E.2d
458, 462 (1986) ("The prosecutor did not attempt to capitalize on
the defendant's reliance on the implicit assurances of the Miranda
warnings, the concern embodied in the Doyle
Additionally, even if Miranda
were applicable, defendant chose
not to remain silent. When Battle wrote to defendant, he
voluntarily chose to write back. As our Supreme Court held in
, the principles set out in Doyle
do not apply when "the
defendant did not exercise his right to remain silent after
receiving Miranda warnings," but rather voluntarily spoke. Id.
that situation, the prosecutor may inquire about the defendant's
failure to disclose certain matters during that voluntary post-
warnings conversation. Id.
The trial court thus did not
commit error in admitting Battle's testimony about defendant's
responses to her letters.
 Defendant next argues that the State presented
inconsistent theories at trial, violating his right to due process.
Defendant points to the fact that the State argued throughout the
trial that defendant was the child's father, but then at sentencing
told the court that there was no evidence presented that defendant
was in fact the father and requested that defendant be required to
register as a sex offender.
The State's theory of this case was that defendant wanted to
kidnap and kill the baby because he did not want to pay child
support to Battle. Battle testified that defendant was the father
of her child and multiple witnesses testified regarding defendant's
desire to avoid paying child support. No evidence was presented
suggesting defendant was not the baby's father. Nevertheless,
following sentencing, the State argued to the trial court that
defendant should "have to register as a sex offender being that he
kidnapped a child and that there's been no proof that he's the
parent of the child." On the judgment, the trial court recommended
that defendant be required to register as a sex offender.
"Equitable estoppel prevents one party from taking
inconsistent positions in the same or different judicial
proceedings, and 'is an equitable doctrine designed to protect the
integrity of the courts and the judicial process.'" State v.
, 128 N.C. App. 394, 400, 496 S.E.2d 811, 815 (quoting
Medicare Rentals, Inc. v. Advanced Servs.
, 119 N.C. App. 767, 769,
460 S.E.2d 361, 363, disc. review denied
, 342 N.C. 415, 467 S.E.2d
700 (1995)), aff'd per curiam
, 349 N.C. 219, 504 S.E.2d 785 (1998). Even assuming that the principle of judicial estoppel may be
applied against the government in a criminal proceeding, the
State's inconsistent positions in this case regarding paternity do
not require a new trial. The State's theory throughout trial was
that defendant was the father, and at no point did the State
deviate from that position. It was only after trial and sentencing
_ and for the purpose of an entirely different statute,
registration of sex offenders _ did the State assert that there was
no evidence of paternity. The inconsistent position only resulted
in a "recommendation" by the trial judge that defendant be required
to register as a sex offender. We can perceive of no prejudice
with respect to the jury's verdict.
As held below, however, this case must be remanded for
resentencing. Upon resentencing, the trial court should revisit
the recommendation regarding registration. We note that the only
evidence in the record indicates that defendant is the father of
the kidnapped child. The State's assertion to the trial judge
"that there's been no proof that he's the parent of that child" is
incorrect. On this record, there is no basis for requiring
defendant to register as a sex offender. The kidnapping of a child
is deemed an offense against a minor only if the offense was not
committed by a parent of the minor. N.C. Gen. Stat. § 14-208.6(1i)
 While this case was on appeal, defendant filed two motions
for appropriate relief arguing that his sentence violates the
United States Supreme Court's decision in Blakely v. Washington
,542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004) because the
trial court imposed an aggravated sentence based on judicially-
found facts. We agree.
Our Supreme Court addressed the impact of Blakely
in State v.
, 359 N.C. 425, 615 S.E.2d 256 (2005), holding that "[o]ther
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed presumptive range must be
submitted to a jury and proved beyond a reasonable doubt." Id.
437, 615 S.E.2d at 265 (citing Blakely
, 542 U.S. at 303-04, 159 L.
Ed. 2d at 413_14, 124 S. Ct. at 2537; Apprendi v. New Jersey
U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362
(2000)). The failure to do so constitutes structural error and is
reversible per se
at 449, 615 S.E.2d at 272.
Because the trial court based defendant's sentence on an
aggravating factor that it, rather than a jury, had found, we must
vacate the sentence and remand for resentencing in accordance with
. With respect, however, to defendant's argument
that the aggravating factor should have been alleged in the
indictment, the Supreme Court rejected that argument in Allen
at 438, 615 S.E.2d at 265.
No error in part, reversed in part, and remanded for
Chief Judge MARTIN and Judge CALABRIA concur.
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