Appeal by defendant from judgments dated 4 May 2004 by Judge
Knox V. Jenkins in Cumberland County Superior Court. Heard in the
Court of Appeals 19 October 2005.
Attorney General Roy Cooper, by Assistant Attorney General
David L. Elliott, for the State.
Glover & Petersen, P.A., by Ann B. Petersen, for defendant-
appellant.
BRYANT, Judge.
James Prentice Roberts (defendant), appeals a judgment dated
4 May 2004, entered consistent with jury verdicts finding him
guilty of: two counts of first degree burglary; two counts of
robbery with a firearm; two counts of conspiracy to commit the
offenses of first degree burglary and robbery with a dangerous
weapon; one count of first degree sexual offense; and two counts of
second degree kidnapping
(See footnote 1)
. For the reasons below, we vacate
defendant's conviction on first degree sexual offense, remanding to
the trial court for an entry of judgment against defendant on
second degree sexual offense, and find no error regarding
defendant's other convictions.
Facts
The State's evidence tended to show that on 15 December 2002,
defendant was involved in the robbery and burglary of Jesus and
Erika Vega-Mendoza at their apartment. That evening, defendant and
two other men discussed robbing someone and they drove to the
Morganton Place apartment complex in Fayetteville, North Carolina.
It was agreed defendant would stay in the car to act as a lookout
and blow the horn if he saw anything suspicious while the other twomen broke into an apartment. At approximately 11:00 p.m., Erika
responded to a knock at the door to their apartment and was met by
a man requesting to use the telephone. Another man was standing
outside the doorway with a mask drawn over his face. Both men
pushed their way into the apartment and the masked man pulled out
a shotgun. Erika and Jesus were tied up and Erika was forced to
remove her clothes and perform fellatio on the masked man. Both
men gathered items of value from the apartment and then left the
room.
The State further presented evidence that defendant took an
active part in another burglary/robbery on the night of 16 December
2002. That night, Richard Waddell was approaching the apartment of
his girlfriend, Alison Kilbourn when three African-American men
came up to him and asked if they could use his telephone. Waddell
entered Kilbourn's apartment and returned outside with a cordless
phone for the men to use. The men returned the phone to Waddell
after attempting to make a call and as Waddell went back into
Kilbourn's apartment, the men forced their way through the door.
One of the men pulled a mask down over his face and pulled out a
shotgun. Kilbourn was led to her bedroom by a man she identified
as defendant. Kilbourn testified defendant made her undress and
forced her to perform fellatio upon him. The men tied up both
Waddell and Kilbourn and Waddell was taken into the bathroom and
placed into the bathtub. The men then left, removing several items
of value from the apartment, including Waddell's wallet.
Procedural History
On 19 May 2003, the Cumberland County Grand Jury returned
three indictments charging defendant with various crimes. The
first (02 CRS 67387) and second (02 CRS 67388) indictments charged
defendant with offenses committed against Alison Kilbourn and
Richard Waddell on 16 December 2002: first degree burglary of
Kilbourn's apartment; robbery with a firearm; first degree sexual
offense against Kilbourn; first degree kidnapping of Kilbourn;
second degree kidnapping of Waddell; and conspiracy to commit the
offenses of first degree burglary and robbery with a firearm. The
third indictment (02 CRS 67389) charged defendant with offenses
committed against Jesus and Erika Vega-Mendoza on 15 December 2002:
first degree burglary of their apartment; robbery with a firearm;
assaulting Jesus with a deadly weapon inflicting serious injury;
and conspiracy to commit the offenses of first degree burglary and
robbery with a dangerous weapon.
The case came on for trial at the 26 April 2004 Criminal Term
of the Cumberland County Superior Court, the Honorable Knox V.
Jenkins, presiding. Prior to trial, an order was entered granting
the State's motion to join the charges in the three indictments for
trial. On 4 May 2004, the jury returned verdicts finding defendant
not guilty of the charge of assaulting Jesus with a deadly weapon
inflicting serious injury and guilty of all of the remaining
offenses charged in the three indictments. The trial court
arrested judgment on the verdict of guilty of first degree
kidnapping of Kilbourn, and entered judgment for second degree
kidnapping. Defendant appeals.
_________________________
Defendant raises the issues of whether the evidence was
sufficient to permit a reasonable juror to find beyond a reasonable
doubt that defendant: (I) committed first degree sexual offense;
(II) committed two counts of kidnapping; and (III) committed two
counts of conspiracy.
In reviewing challenges to the sufficiency of
evidence, we must view the evidence in the
light most favorable to the State, giving the
State the benefit of all reasonable
inferences.
Contradictions and discrepancies
do not warrant dismissal of the case but are
for the jury to resolve. The test for
sufficiency of the evidence is the same
whether the evidence is direct or
circumstantial or both. Circumstantial
evidence may withstand a motion to dismiss and
support a conviction even when the evidence
does not rule out every hypothesis of
innocence. If the evidence presented is
circumstantial, the court must consider
whether a reasonable inference of defendant's
guilt may be drawn from the circumstances.
Once the court decides that a reasonable
inference of defendant's guilt may be drawn
from the circumstances, then it is for the
jury to decide whether the facts, taken singly
or in combination, satisfy [it] beyond a
reasonable doubt that the defendant is
actually guilty.
State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002)
(internal citations and quotations omitted). The Due Process
Clause of the Fourteenth Amendment to the United States
Constitution requires that the sufficiency of the evidence to
support a conviction be reviewed with respect to the theory of
guilt upon which the jury was instructed.
Presnell v. Georgia, 439
U.S. 14, 16, 58 L. Ed. 2d 207, 211 (1978).
I
[1] Defendant first argues there was insufficient evidence to
support the jury's guilty verdict on first degree sexual offense.
Section 14-27.4 of the North Carolina General Statutes states that
a person is guilty of first degree sexual offense if the person
engages in a sexual act:
(2) With another person by force and against
the will of the other person, and:
a. Employs or displays a dangerous
or deadly weapon or an article which
the other person reasonably believes
to be a dangerous or deadly weapon;
or
b. Inflicts serious personal injury
upon the victim or another person;
or
c. The person commits the offense
aided and abetted by one or more
other persons.
N.C. Gen. Stat. . 14-27.4(a)(2) (2005). In its charge to the jury,
the trial court instructed that the jury may find defendant guilty
of first degree sexual offense:
[I]f you find from the evidence beyond a
reasonable doubt that on or about the alleged
date, the defendant engaged in a sexual act
with the victim, and that he did so by force
or threat of force, and that this was
sufficient to overcome any resistance which
the victim might make, and that the victim did
not consent and it was against her will, and
that the defendant employed or displayed a
weapon, it would be your duty to return a
verdict of guilty of first degree sexual
offense.
The trial court then instructed the jury on the three elements of
the lesser included offense of second degree sexual offense
pursuant to N.C. Gen. Stat. . 14-27.5. However, the trial court did not instruct the jury that they
may find defendant guilty of first degree sexual offense under
either the theory of acting in concert or aiding and abetting. In
the absence of an instruction permitting the jury to convict
defendant on any theory of vicarious liability, the State was
required to prove defendant personally committed each element of
first degree sexual offense.
State v. Wilson, 345 N.C. 119, 123,
478 S.E.2d 507, 510-11 (1996) (“[I]n the absence of an acting in
concert instruction, the State must prove that the defendant
committed each element of the offense. Thus, even where the
evidence is sufficient to support a conviction . . . on a theory of
. . . acting in concert, the conviction cannot be upheld absent a
jury charge to that effect.”);
State v. Cunningham, 140 N.C. App.
315, 321, 536 S.E.2d 341, 346 (2000) (“When no such instruction is
submitted to the jury, a defendant may not be convicted under a
theory of constructive breaking.
Instead, the State is required to
prove that the defendant personally committed the breaking.”).
The jury was instructed it could find defendant guilty of
first degree sexual offense only if he employed or displayed a
dangerous or deadly weapon. Without an instruction on acting in
concert or the theory of aiding and abetting, the evidence must
support a finding that defendant personally employed or displayed
a dangerous or deadly weapon in the commission of the sexual
offense. There was no evidence at trial that defendant ever,
personally, employed or displayed a dangerous weapon during the
time he was in Kilbourn's apartment. All the testimony at trialestablished another man held the shotgun throughout the incident.
The evidence is insufficient to permit a reasonable jury to convict
defendant of first degree sexual offense.
However, when viewed in the light most favorable to the State,
the evidence was sufficient to prove defendant committed the lesser
included offense of second degree sexual offense. Kilbourn
identified defendant as the man who forced her to perform fellatio.
Because in finding defendant . . . guilty of a
first degree sexual offense the jury
necessarily found as fact all the elements
constituting second degree sexual offense, and
the evidence is insufficient on the element
which would make it a first degree offense,
the verdict of guilty of a first degree sexual
offense must necessarily be viewed by this
Court as a verdict of guilty of a second
degree sexual offense.
State v. Barnette, 304 N.C. 447, 469, 284 S.E.2d 298, 311 (1981).
We therefore recognize the jury's verdict as a verdict of guilty of
second degree sexual offense, vacate the judgment imposed upon the
verdict of first degree sexual offense and remand to the lower
court to impose a judgment upon a verdict of second degree sexual
offense.
II
[2] Defendant next argues the evidence was insufficient to
permit a reasonable juror to find beyond a reasonable doubt that
defendant committed the crimes of second degree kidnapping of
Kilbourn and second degree kidnapping of Waddell. Section 14-39 of
the North Carolina General Statutes defines second degree
kidnapping as follows: (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, or any
other person under the age of 16 years without
the consent of a parent or legal custodian 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.
(b) . . . If the person kidnapped was released
in a safe place by the defendant and had not
been seriously injured or sexually assaulted,
the offense is kidnapping in the second degree
. . . .
N.C. Gen. Stat. § 14-39 (2005). The restraint involved in the
offense of kidnapping must not be the restraint that is an
inherent, inevitable element of another felony such as armed
robbery or rape.
State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d
338, 351 (1978). Similarly, the removal element of kidnapping must
be an asportation that is not an inherent part of the commission of
another felony such as armed robbery.
State v. Irwin, 304 N.C. 93,
102-03, 282 S.E.2d 439, 446 (1981). However, “[a]sportation of a
rape victim is sufficient to support a charge of kidnapping if thedefendant could have perpetrated the offense when he first
threatened the victim, and instead, took the victim to a more
secluded area to prevent others from witnessing or hindering the
rape.”
State v. Walker, 84 N.C. App. 540, 543, 353 S.E.2d 245, 247
(1987).
In the instant case, the jury was instructed that they may
find defendant guilty of the kidnappings of Kilbourn and Waddell if
they found defendant unlawfully confined, restrained or removed
them from one place to another without their consent for the
purpose of facilitating the commission of the felonies of burglary,
robbery with a firearm and first degree sexual offense. However,
as in Issue
I,
supra, the trial court failed to give an instruction
permitting the jury to rest a verdict of guilt on either acting in
concert or aiding and abetting.
Nevertheless, evidence at trial was sufficient to establish
that the removal of Waddell to the bathroom and the binding of his
hands were not acts necessarily inherent in the commission of the
other felonies of robbery, sexual offense and burglary. Similarly,
after defendant sexually assaulted Kilbourn, her hands were bound
and she was left tied up. There was no specific testimony as to
which of the three men tied up either Kilbourn or Waddell, only
that they were tied up by the perpetrators and Waddell was led into
the bathroom by two of the men and left in the tub. However, this
is sufficient evidence to establish the restraint necessary beyond
either the burglary, robbery or sexual offense. Furthermore, based
on the evidence presented the jury could have reasonably concludeddefendant was involved in tying up both Kilbourn and Waddell.
Therefore, sufficient evidence exists to support the two counts of
second degree kidnapping. This assignment of error is overruled.
III
[3] Defendant also argues the evidence was insufficient to
permit a reasonable juror to find beyond a reasonable doubt that
defendant committed separate conspiracies. Defendant was charged
with conspiring with others to commit the felonies of first degree
burglary and robbery with a dangerous weapon against Waddell and
Kilbourn. Defendant was also charged with conspiring with others
to commit the felonies of first degree burglary and robbery with a
dangerous weapon against Jesus and Erika Vega-Mendoza. Defendant
asserts the State proved only the existence of a single conspiracy
encompassing both incidents.
Conspiracy is “an agreement between two or more persons to do
an unlawful act or to do a lawful act in an unlawful way or by
unlawful means.”
State v. Arnold, 329 N.C. 128, 142, 404 S.E.2d
822, 830 (1991). A single conspiracy may consist of a criminal
confederation involving the commission of a series of different
criminal offenses and may even involve variation in the members of
the conspiracy over a period of time.
State v. Fink, 92 N.C. App.
523, 532, 375 S.E.2d 303, 308-09 (1989). Convicting and punishing
a defendant for multiple counts of conspiracy when the evidence
shows a conspiracy with some of the same people over a short period
of time to commit a series of related crimes violates the
defendant's state and federal constitutional right to be free fromdouble jeopardy.
State v. Medlin, 86 N.C. App. 114, 121, 357
S.E.2d 174, 178 (1987). However,
[t]he question of whether multiple agreements
constitute a single conspiracy or multiple
conspiracies is a question of fact for the
jury. The nature of the agreement or
agreements, the objectives of the
conspiracies, the time interval between them,
the number of participants, and the number of
meetings are all factors that may be
considered.
State v. Tirado, 358 N.C. 551, 577, 599 S.E.2d 515, 533 (2004)
(internal citations omitted).
Here, the State presented evidence showing the first
conspiracy was formed on the evening of 15 December 2002 when
defendant agreed with Rafael Purdie and Darrell Meyers to rob
someone. There was no evidence that the agreement formed on 15
December 2002 consisted of more than that of robbing someone on
that night. The mere fact that the defendant was involved in a
similar crime the next night does not indicate the two crimes were
committed as part of the agreement made on 15 December 2002.
Viewing the evidence in the light most favorable to the State,
evidence was presented allowing the jury to find that defendant was
involved in two separate conspiracies. This assignment of error is
overruled.
Vacated and remanded in part, no error in part.
Judges HUDSON and CALABRIA concur.
Footnote: 1