State v Caldwell, (05-139) 11/15/2005

Appeal by defendant from judgments entered 2 April 2004 by Judge Albert Diaz in Mecklenburg County Superior Court. Heard in the Court of Appeals 31 October 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General Thomas R. Miller, for the State.

Nancy R. Gaines for defendant-appellant.

CALABRIA, Judge.

    Allen Fitzgerald Caldwell (“defendant”) was charged with three counts of robbery with a dangerous weapon occurring on the three separate dates of 18 July 2002, 19 July 2002, and 29 July 2002. In connection with the armed robberies, defendant was also charged with five counts of second degree kidnapping and three counts of possession of a firearm by a felon. Over defendant's objection, the trial court joined the charges for trial. The State presented evidence showing that at 1:20 p.m., on 18 July 2002, defendant entered the First Southern Cash Advance on Sunset Road. Defendant, brandishing a handgun, approached employees Amica Quick (“Quick”) and Jennifer Holland (“Holland”), who were sitting behind the storecounter. Defendant stated to the employees, “Give me the money out of the registers.” After the employees gave defendant the money in their cash drawers, defendant told Quick and Holland to go to the back of the business. Defendant then approached the safe. Upon learning that the safe contained only papers, defendant stated that he wanted to exit the business using the back door. When Quick told defendant that the back door could only be opened with a key, defendant instructed Quick to obtain the key and stated, “If you do anything funny, I will shoot [Holland].” After defendant received the back door key, defendant ordered the employees into the bathroom and told them to count to one hundred. While the employees counted, Quick heard the door shut and the two employees exited the bathroom to call the police. Both employees identified defendant as the perpetrator at a photo lineup later that day.
    The next day, at approximately 4:30 p.m., defendant entered the First Southern Cash Advance on Alleghany Street. Defendant, carrying a handgun, came around the counter and asked employees Tanesha Carr (“Carr”) and Robin Isaacs (“Isaacs”) where the money was kept and if the business had a safe. Upon being informed that the business did not have a safe, defendant took money out of the employees' cash drawers. Defendant then ordered Carr and Isaacs to go into the bathroom located at the back of the business and count to one hundred. As the two employees counted, defendant exited the business through the back door. Carr and Isaacs subsequently identified defendant as the perpetrator in a photo lineup.     At about 12:20 p.m. on 29 July 2002, Jonah Carr Gregory, (“Gregory”) the branch manager of the National Cash Advance office on Freedom Drive, unlocked the front door and let defendant enter the business. Defendant followed Gregory around the counter. When Gregory asked defendant, “can I help you?”, defendant brandished a handgun and said, “I'm here to get your money - - get all your money.” Gregory gave defendant the money from the safe and cash drawer. Afterwards, defendant ordered Gregory to go to the bathroom in the back of the business and count to one hundred. When Gregory heard defendant leave through the back door, he went to the front of the business and pressed the panic buttons. Gregory identified defendant as the perpetrator during a photo lineup.    A jury found defendant guilty of three counts of robbery with a firearm, five counts of second degree kidnapping and three counts of possession of a firearm by a felon. The trial court sentenced defendant to three consecutive sentences of 133 to 169 months in the North Carolina Department of Corrections. Defendant appeals.
    Defendant first contends the trial court erred in joining the three separate incidents for trial. Defendant argues the incidents should not have been joined because there is no “transactional connection” between them. The consolidations of charges is governed by statute:
        (a) Joinder of Offenses.-- Two or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together orconstituting parts of a single scheme or plan. Each offense must be stated in a separate count as required by G.S. 15A-924.

N.C. Gen. Stat. § 15A-926(a) (2003). The joinder of criminal charges for trial requires only that there be "some sort of 'transactional connection' between" them. State v. Bracey, 303 N.C. 112, 117, 277 S.E.2d 390, 394 (1981) (quoting State v. Powell, 297 N.C. 419, 255 S.E.2d 154 (1979)). A court may find the necessary transactional connection based on "a common modus operandi and the time lapse between offenses." State v. Williams, 355 N.C. 501, 530-31, 565 S.E.2d 609, 627 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003). The court's decision will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Kornegay, 313 N.C. 1, 23-24, 326 S.E.2d 881, 898 (1985).
    Here, the transactional connection was established through numerous factors. First, all three robberies targeted cash advance businesses. Second, all were committed in the afternoon, in Charlotte, and within a two-week period. Third, the perpetrator was a male brandishing a handgun. Fourth, the perpetrator demanded money and asked about the business's safe. Fifth, the perpetrator would order the employees into the bathroom and count to one hundred while he left the premises through the back door. This pattern of operation was sufficient to establish the requisite connection between the three cases. Accordingly, the trial court did not abuse its discretion in electing to consolidate the charges.    Defendant also contends the trial court erred by not granting his motion to dismiss the kidnapping charges. He argues that the State presented insufficient evidence of a restraint separate from that inherent in the robbery and, therefore, he cannot be convicted of both crimes. We disagree.
     The standard for ruling on a motion to dismiss "is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994). In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). “Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.” State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996).
    Kidnapping is the confining, restraining, or removing from one place to another of a person sixteen years of age or over without the person's consent and for a purpose prohibited by statute. N.C. Gen. Stat. § 14-39 (2003). Our Supreme Court has stated that “'[r]estraint' connotes a restraint separate and apart from that inherent in the commission of the other felony.” State v. Johnson,337 N.C. 212, 221, 446 S.E.2d 92, 98 (1994). In a case similar to this case, this Court upheld the denial of a motion to dismiss kidnapping charges where the victims were moved from one room to another where they were confined. State v. Joyce, 104 N.C. App. 558, 410 S.E.2d 516 (1991), cert. denied, 331 N.C. 120, 414 S.E.2d 764 (1992). This Court reasoned that “[t]he removals were not an integral part of the crime nor necessary to facilitate the robberies, since the rooms where the victims were ordered to go did not contain safes, cash registers or lock boxes which held property to be taken.” Id. at 567, 410 S.E.2d at 521. Likewise, in State v. Davidson, 77 N.C. App. 540, 335 S.E.2d 518 (1985), disc. review denied, 315 N.C. 393, 338 S.E.2d 882 (1986), this Court held that there was sufficient evidence to establish kidnapping where perpetrators forced victims at gunpoint to the dressing rooms in the rear of the store because none of the property was kept in the dressing rooms and it was not necessary to move victims there in order to commit the robbery. This Court reasoned that the removal to the dressing rooms constituted a “separate course of conduct designed to remove the victims from the view of passerby who might have hindered the commission of the crime.” Id. at 543, 335 S.E.2d at 520.
    As in Joyce and Davidson, defendant's removal of the employees to the bathroom was not an integral part of the crime nor necessary to facilitate the robbery. When defendant moved the employees at gunpoint to their respective bathrooms, defendant had already taken money from the cash drawers and thus, the robbery had beencompleted. Furthermore, defendant did not move the employees to the bathrooms to obtain more stolen items since the bathrooms did not contain safes, cash registers, or lock boxes which held property to be taken. See Joyce, 104 N.C. App. at 567, 410 S.E.2d at 521. We hold the evidence was sufficient under N.C. Gen. Stat. § 14-39 to sustain the kidnapping convictions, and the court properly denied defendant's motion to dismiss the kidnapping charges.
    Because defendant has not argued his other assignments of error on appeal, they are abandoned pursuant to N.C. R. App. P. 28(b)(6) (2004).
    No error.
    Judges WYNN and JACKSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***