STATE OF NORTH CAROLINA
v
.
Forsyth County
No. 02 CRS 61303
VINCENT LEE SAWYER
Attorney General Roy Cooper, by Assistant Attorney General
Jennie Wilhelm Mau, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
CALABRIA, Judge.
Vincent Lee Sawyer (“defendant”) appeals from a judgment
entered on a jury verdict of guilty of first-degree kidnapping and
sentencing him to a term of sixty-six to eighty-nine months'
imprisonment in the North Carolina Department of Correction. We
find no error.
The evidence at trial tended to show that on 4 October 2002
defendant and Leigh Ann Talley (the “victim”) had separated after
six and one-half years of marriage. That night, they met for
dinner to allow the victim to get some insurance papers and money
for bills from defendant and to allow defendant to get some church
information from the victim. Defendant and the victim beganarguing as they left the restaurant, and each returned to their
respective cars, which were parked beside each other. After the
victim opened the driver's side door of her vehicle, defendant
opened her passenger's side door and pointed a handgun he had
purchased earlier that day at her. The victim stepped back to the
side of her vehicle, and defendant told her to get in the car.
Thereafter, defendant ran around the driver's side of her car and
began struggling with the victim for her car keys.
During the ensuing struggle, the victim fell backwards onto
her driver's seat but was able to use the radio function of her
cellular phone to call for help. Defendant took the phone from the
victim, and they began to struggle with each other. Defendant
informed the victim that he had a “hit” on both her father and one
of her friends. The victim, who suffered from mitral valve
prolapse, started experiencing chest pains, had difficulty
breathing then lost consciousness.
When the victim regained consciousness, she realized she was
riding in defendant's vehicle. Despite her attempts to feign
continued unconsciousness, defendant realized she had awakened and,
at one point, pulled over and began kissing her and forcing his
tongue in her mouth. Defendant drove the victim to a motel where
he had procured a room earlier in the day. Although defendant knew
she had regained consciousness, he carried the victim over his
shoulder to his motel room, placed her on the bed, and removed her
undergarments, tearing them in the process. Because the victim did
not know where defendant's gun was, she continued to “play dead.” Defendant positioned the victim so he could take lewd photographs
of her and used lubricant and a sexual device on the victim, which
she initially thought was the gun. Defendant attempted vaginal
intercourse but ceased due to the lack of response and told the
victim he loved her.
Up until that point, the victim had continued to feign
unconsciousness; however, she became visibly upset, and defendant
retrieved her undergarments and allowed her to get dressed. The
victim was feeling dizzy and feared losing consciousness again, and
defendant took the victim back to his car by carrying her over his
shoulder a second time. Defendant took the victim to the hospital
while the victim again acted “[a]s if [she] was still out” and
remained there while she was treated. The victim told the
attending medical personnel that defendant was armed and had raped
her.
The victim gave a brief account of the event to police, and a
sexual assault nurse examiner interviewed her and performed a rape
kit. The examiner noted the victim had some bruising and abrasions
on her elbow, legs and shoulder, but there was no evidence
indicating traumatic penetration. While this examination was
proceeding, officers with the Winston-Salem Police Department
detained and interviewed defendant. Defendant consented to a
search of his motel room, where the police found, inter alia, a
magazine or clip used with defendant's gun along with instruction
books for the gun's use, a Polaroid camera and picture, a vibrator,
and sexual lubricants. Defendant was arrested and charged withfirst-degree kidnapping, second-degree rape, and second-degree
sexual assault.
At trial, defendant testified on his own behalf. Defendant
testified he rented a motel room because time constraints in
meeting the victim precluded his going to his residence. The
reason defendant bought a gun that day was because he had been
having problems with dogs coming into the yard, and defendant
brought the camera and sexual paraphernalia because he “hoped at
any time and every time that [the victim] and [he] ever got
together, that [they] could possibly reconcile . . . [and he]
wanted it to be the most romantic evening of [their] lives.” When
the argument broke out after dinner, defendant retrieved the
insurance papers and gun from his truck. Defendant admitted to
waiving the gun in the direction of the dashboard but asserted he
did not point it at the victim, and the victim mistakenly called
for help. After using the victim's cell phone to tell the person
the victim contacted that “everything was going to be okay,”
defendant realized the victim was on the ground. He picked her up,
and she told him to “get her someplace.” Defendant put her in his
truck to take her to the hospital, but, in his distress, he
proceeded in the direction away from the hospital.
During the trip, defendant realized the victim had regained
consciousness and decided instead to take her to his motel room “in
hopes of the anxiety would pass and that she would not be mad at
[him] and just talk to her.” Defendant carried her to his room and
tried to talk to her, but she would not answer. When he tried tokiss her, the victim moved her head to prevent the kiss, but
defendant explained “that was normal” because the victim would not
kiss him “[a]nytime after [they] had eaten . . . until she had
brushed her teeth.” Defendant testified he continued to kiss and
caress her but only escalated the sexual activity with the camera
and sexual paraphernalia because the victim responded to his
advances and assisted his taking the photograph. Nonetheless,
defendant also testified that he finally terminated his advances
“when [he] realized that [the victim] wasn't going to be responsive
at all.” Defendant became emotionally upset, at which point the
victim said she “couldn't breathe,” and defendant picked her up,
carried her to his truck, and took her to the hospital.
Both at the close of the State's evidence and again at the
close of all the evidence, defendant moved to dismiss the charges
for insufficiency of the evidence. The trial court denied both
motions, and instructed the jury with respect to first-degree
kidnapping, second-degree sexual offense, and second-degree rape.
After retiring to deliberate, the jury asked for clarification with
respect to the elements of first-degree kidnapping, and the trial
court instructed the jury again on those elements. After the jury
retired a second time, defendant objected with respect to the re-
instruction. The trial court overruled the objection and noted the
exception. The jury returned a verdict of guilty of first-degree
kidnapping and second-degree sexual offense and not guilty of
second-degree rape. The trial court arrested judgment on the
charge of second-degree sexual offense, and sentenced defendant onthe remaining charge. Defendant appeals, asserting the trial court
(I) erred during the re-instruction to the jury by implying it
believed one or more of the elements had been proven; (II)
erroneously set forth the law of first-degree kidnapping in its
instruction to the jury; and (III) erred in failing to dismiss the
charge of first-degree kidnapping due to insufficiency of the
evidence.
I. Implication during Jury Re-instruction
In his first assignment of error, defendant asserts that a
“careful reading of the re-instructions given by the court [to the
jury concerning first-degree kidnapping] show . . . [a] jury could
easily infer from the court's instructions [that] the court
believed the State had proven the defendant had either unlawfully
confined, restrained or removed the alleged victim and the jury
simply needed to unanimously agree on one.” We disagree.
A judge may not “express an opinion as to whether or not a
fact has been proved . . . .” N.C. Gen. Stat. § 15A-1232 (2003).
Any expression of opinion upon the evidence in any manner is
prohibited. State v. Belk, 268 N.C. 320, 324, 150 S.E.2d 481
(1966). This is due to the judge's exalted position and the
jurors' profound respect for his opinion. State v. Carter, 268
N.C. 648, 653, 151 S.E.2d 602, 606 (1966). Our review of an
asserted expression of opinion by a trial judge on the evidence
involves examining the totality of the circumstances to determine
whether the defendant has shown he was deprived of a fair trial.
State v. Gell, 351 N.C. 192, 207, 524 S.E.2d 332, 342 (2000). The jury returned from deliberations with a request that the
trial court “clarify . . . the five criteria for first degree
kidnapping . . . .” The trial court re-instructed, in pertinent
part, as follows:
THE COURT: [Defendant] has been charged with
first degree kidnapping, and for you to find
him guilty of first degree kidnapping, the
State must prove five things beyond a
reasonable doubt. [With respect to the first
element,] there's three ways the State can
prove that first thing. Y'all would have to
agree on one of those. Confinement,
restraint, or removal of [the victim] from one
place to another. That's the --
[JUROR]: And that is or?
THE COURT: Pardon me?
[JUROR]: Or?
THE COURT: Right, or.
[JUROR]: Okay.
THE COURT: One of those three that you would
unanimously agree upon . . . . That's the
first thing.
. . .
THE COURT: Okay. So, if you find from the
evidence beyond a reasonable doubt that on or
about October 4th, 2002 [defendant] unlawfully
confined [the victim], restrained her, or
removed her from one place to another, [along
with the other four elements of first-degree
kidnapping], then it would be your duty to
return a verdict of guilty of first degree
kidnapping.
If you do not so find or have a reasonable
doubt as to one or more of these things, then
it would be your duty to consider whether he's
guilty of second degree kidnapping.
Defendant did not carry his burden of showing he was deprived of a
fair trial due to an impermissible expression of opinion by the
trial court when she instructed the jury on the elements of
unlawful confinement, restraint, or removal of the victim. The
totality of the charge reveals the trial court correctly set out
the law as well as the State's burden with respect to the firstelement
(See footnote 1)
of first-degree kidnapping and clearly told the jury they
could find one, some, all, or none of the methods by which the
first element could be met. Moreover, no opinion was improperly
expressed by the trial court's correct answer to the question asked
by the juror. This assignment of error is overruled.
II. Jury Instruction
By his second assignment of error, defendant asserts the trial
court erroneously instructed the jury with respect to the first
element of first-degree kidnapping by using the disjunctive “or,”
which rendered the verdict ambiguous and deprived defendant of a
unanimous verdict. Specifically, defendant takes issue with the
trial court's instruction as to the first element of first-degree
kidnapping (whether defendant “confined, restrained, or removed
[the victim] for the purpose of facilitating his commission of
second-degree rape or second-degree sex offense . . .).” Defendant
contends this instruction allowed “a minimum of six possible
scenarios and failed to require the jury to be unanimous as is
mandated by our constitution.” We disagree.
Our Supreme Court recently considered the following
instruction for the third element of kidnapping:
Third, that the defendant, or someone with
whom he was acting in concert, confined or
restrained or removed that person for the
purpose of facilitating the defendant'scommission, or the commission by someone with
whom he was acting in concert, of felonious
larceny of a vehicle, or burning of personal
property, or assault with a deadly weapon
inflicting serious injury, or for the purpose
of doing serious bodily injury to that person.
State v. Bell, 359 N.C. 1, 29, 603 S.E.2d 93, 112 (2004) (emphasis
added). In finding no error with the instruction, our Supreme
Court again noted that “if the trial court merely instructs the
jury disjunctively as to various alternative acts which will
establish an element of the offense, the requirement of unanimity
is satisfied.” Id., 359 N.C. at 30, 603 S.E.2d at 113 (citations
and quotation marks omitted). We find the jury instruction and
argument in the instant case to be sufficiently similar to that
considered in Bell to command the same result. This assignment of
error is overruled.
III. Motion to Dismiss
Defendant's final assignment of error concerns the trial
court's denial of his motion to dismiss. When ruling on a motion
to dismiss, the trial court must determine whether the prosecution
has presented, with respect to each essential element of the crime,
substantial evidence (or relevant evidence adequate to support a
conclusion as determined by a reasonable mind). Id., 359 N.C. at
25, 603 S.E.2d at 110. When reviewing a trial court's denial of a
motion to dismiss, we view the evidence in the light most favorable
to the State and give the State the benefit of every reasonable
inference. State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869
(2002). This is true whether the evidence is direct,
circumstantial, or both. Id. “Contradictions and discrepancies donot warrant dismissal of the case but are for the jury to resolve.”
Id.
“First-degree kidnapping is: (a) the unlawful, nonconsensual
confinement, restraint or removal of a person for the purpose of
committing certain specified acts; and (b) either the failure to
release the person in a safe place, or the injury or sexual assault
of the person.” State v. Tirado, 358 N.C. 551, 591, 599 S.E.2d
515, 542 (2004). These specified acts include “[f]acilitating the
commission of any felony . . . .” N.C. Gen. Stat. § 14-39 (2003).
Defendant specifically argues the State failed to produce
substantial evidence concerning consent and also that defendant
acted for the purpose of facilitating the commission of a felony.
With respect to consent, defendant argues the State “failed to
introduce evidence showing [the victim's] removal was done without
her consent since all the evidence tended to show she was
unconscious at the time she was placed in the defendant's vehicle.”
This argument is without merit. The evidence adduced at trial
tended to show that, after dinner, defendant pointed a gun at the
victim and, when she attempted to use the radio function of her
phone to summon help, overpowered her and took the phone from her.
After defendant threatened the victim with a gun and she lost
consciousness, he put her in his truck. Although he became aware
that she had regained consciousness but was feigning
unconsciousness and “play[ing] dead,” he took her to his motel room
where he sexually assaulted her despite the fact that she either
resisted his advances (turned away from him when he tried to kissher, e.g.) or maintained her continued unresponsiveness and
affectation of unconsciousness. We find this evidence sufficient
to withstand a motion to dismiss with respect to the element of
consent.
Defendant alternatively argues he was not acting with the
purpose of facilitating a felony but, instead, intended to take the
victim to the hospital at the time he placed her in his vehicle.
It may be true that defendant (1) bought a gun the day of the
assault because of a problem with dogs, (2) rented a motel room
that day due to lack of time, (3) brought a camera and sexual
paraphernalia hoping to reconcile and make the evening romantic,
and (4) attempted to drive the victim to the hospital when she
fainted only to go in the wrong direction. It may also be true
that defendant's actions were undertaken to coerce the victim into
engaging in sexual acts against her will and without consent. That
question was for the jury based on the evidence, which was fully
sufficient to support the submission of the charge of first-degree
kidnapping to the jury. This assignment of error is overruled.
No error.
Judges TIMMONS-GOODSON and GEER concur.
Report per Rule 30(e).
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