An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1118


Filed: 16 August 2005


v .                         Forsyth County
                            No. 02 CRS 61303

    Appeal by defendant from judgment entered 8 April 2004 by Judge Catherine C. Eagles in Forsyth County Superior Court. Heard in the Court of Appeals 14 April 2005.

     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).

Footnote: 1
     When the trial court instructed the jury on the element which includes confinement, restraint or removal, the court designated this element as the first element. When the Supreme Court reviewed the instruction, this same element is referred to as the “third” element.

*** Converted from WordPerfect ***