STATE OF NORTH CAROLINA
v
.
Cumberland County
No. 02 CRS 65836, 65837
ANTHONY L. GLADDEN
Attorney General Roy Cooper, by Assistant Attorney General C.
Norman Young, Jr., for the State.
Richard E. Jester for defendant-appellant.
ELMORE, Judge.
Anthony L. Gladden (defendant) was charged with the offenses
of robbery with a dangerous weapon, first degree kidnapping, felony
conspiracy, and assault with a deadly weapon inflicting serious
injury in indictments issued on 24 June 2003. Defendant was tried
in Cumberland County Superior Court, with Judge Gregory A. Weeks
presiding. At trial, the State's evidence tended to show the
following: Grace Overby (the victim) was 74 years old at the time
of trial and, prior to 8 November 2002, had worked at Hamont
Cleaners in Eureka Springs. On 8 November 2002 the victim arrived
at the store at approximately 8:00 a.m. The victim was alone, as
her husband was preparing to arrive later to pick up money to bring
to the bank. Between 9:00 and 9:30 a.m., a man came into the storewearing a sweater with a hood. The man ordered her to open the
safe. When the victim replied that she did not have a safe, he
pulled out a gun and pointed it between her eyes.
The victim testified that another man then appeared with a
knife. The man with the knife jumped across the counter and
grabbed her by the waist. He dragged her across the floor before
she was able to break out of his grip. The man grabbed her again
and threw her against a pipe that held up clothing racks. The
victim was knocked unconscious for an unknown period of time. When
she recovered, the victim called the sheriff's department. The
victim was transported to Cape Fear Valley Hospital and examined.
She suffered two or three fractured ribs and also experienced post-
traumatic stress disorder. The victim testified that around one
thousand dollars was missing from the store and also money from her
pocketbook.
Faith Trogdon testified that she was a deputy sheriff for the
Cumberland County Sheriff's Department. Deputy Trogdon took
photographs and measurements at Hamont Cleaners and, based upon
information from the victim, determined that the victim was dragged
from the cash register to the clothing racks for a distance of
eleven feet and thrown a distance of seven feet.
Antonio Johnson testified that he had been charged with the 8
November 2002 robbery and reached a plea agreement with the State
in which he agreed to testify truthfully about defendant's role.
Mr. Johnson stated that in exchange for his testimony and pleading
guilty to conspiracy to commit armed robbery and assault with adeadly weapon inflicting serious injury, the State dismissed the
charges of robbery with a dangerous weapon and first degree
kidnapping. Mr. Johnson testified that he met defendant in October
of 2002 and that defendant was not working at that time;
defendant's girlfriend was the sole supporter of their four or five
children. Mr. Johnson observed the power shut off at defendant's
residence a few separate times when he was there visiting. During
the week before 8 November 2002, defendant approached Mr. Johnson
about assisting him in a robbery of Hamont Cleaners. Mr. Johnson
testified that he just shrugged it off. The day before the
robbery, defendant asked Mr. Johnson, “Are you still going to do
this lick with me?” Mr. Johnson stated that he just walked away.
On the morning of 8 November defendant arrived at Mr.
Johnson's residence at 8:45 a.m. to ask if he was ready to “do this
lick for me.” Mr. Johnson testified that he followed defendant
because he was worried that defendant or someone else would break
into his home if he did not agree to go. Defendant gave Mr.
Johnson a chrome gun and carried an army style knife himself. The
two men walked over to Hamont Cleaners and then stood by the side
of the building for a few minutes to see if anyone was going in or
out. Defendant entered the store first, and Mr. Johnson walked in
about a minute later. Mr. Johnson pointed the gun at the victim,
and defendant jumped over the counter and grabbed her. Defendant
instructed Mr. Johnson to get the money from the cash register.
When the victim moved forward towards the cash register, defendant
pulled her back. Defendant then picked the victim up and carriedher to the side of the store while she was screaming. Mr. Johnson,
without taking any money, exited through the back door and ran
toward a dirt road. Defendant followed behind him with a blue bank
bag and some change.
Ms. Batwa Allen testified that in November of 2002 she was a
clerk at the Quick Stop, a gas station located in close proximity
to Hamont Cleaners. Ms. Allen stated that she knew defendant and
that three or four days before 8 November 2002 defendant came into
the Quick Stop and asked her, “What would you do if I robbed you?”
Ms. Allen replied that she would send the police after him. She
testified that she thought defendant was joking and did not take
what defendant said seriously. Lauralyn Swinney testified that she
worked at the Quick Stop and that she knew defendant and Mr.
Johnson. On the morning of 8 November 2002 she and her husband
were outside the Quick Stop when they saw Mr. Johnson and defendant
walk by. When Ms. Swinney and her husband left the Quick Stop and
drove past Hamont Cleaners, she saw Mr. Johnson and defendant
standing outside with their backs against the wall and looking
around. Ms. Swinney remarked to her husband, “What the hell they
doing over there?” Approximately 45 minutes later, Ms. Swinney and
her husband passed by Hamont Cleaners again and saw squad cars
there.
Defendant's evidence tended to show the following: Kierra
McLean testified that she was Mr. Johnson's fiancee in November of
2002. She stated that Mr. Johnson possessed a chrome handgun a
couple of months before November. Defendant also called AntonioJohnson, who testified that he initially did not tell law
enforcement officers the truth about the robbery because he was
afraid and did not want to be charged. Johnny Townsend testified
that he shared a cell block with Mr. Johnson at the Cumberland
County Jail. Mr. Townsend stated that Mr. Johnson told him that
defendant was not involved in the robbery but that he was going to
testify against defendant.
At the close of all evidence, defendant renewed his motion to
dismiss all charges, including the kidnapping charge on double
jeopardy grounds. The trial court denied the motion to dismiss.
The jury convicted defendant of robbery with a dangerous weapon,
first degree kidnapping, conspiracy to commit robbery with a
dangerous weapon, and assault with a deadly weapon inflicting
serious injury. The court arrested judgment on the conviction for
assault with a deadly weapon inflicting serious injury. Defendant
was sentenced to 93 to 121 months imprisonment for kidnapping; 34
to 50 months for conspiracy; and 82 to 108 months for robbery, to
run consecutively with the sentence for the kidnapping conviction.
Defendant appeals.
By his first assignment of error, defendant contends the trial
court erred in denying his motion to dismiss the kidnapping charge
because the State did not prove that the kidnapping was a separate
offense from the robbery. Specifically, defendant argues that the
restraint of the victim was an inherent part of the robbery and to
convict defendant of the independent offense of kidnapping violates
his right of protection against double jeopardy. Our Supreme Court has stated that “certain felonies (e.g.,
forcible rape and armed robbery) cannot be committed without some
restraint of the victim.” State v. Fulcher, 294 N.C. 503, 523, 243
S.E.2d 338, 351 (1978). As such, the Court construed the word
“restrain” in the kidnapping statute, N.C. Gen. Stat. § 14-39, as
“a restraint separate and apart from that which is inherent in the
commission of the other felony.” Id. Similarly, in State v.
Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981), the Supreme Court
construed the word “removal from one place to another” in N.C. Gen.
Stat. § 14-39 as requiring a removal “separate and apart from that
which is an inherent, inevitable part of the commission of another
felony.” Irwin, 304 N.C. at 103, 282 S.E.2d at 446. In Irwin, the
defendant and his accomplice forced a store employee at knifepoint
to walk from the cash register to the back of the store where the
prescription counter and safe were located. The Court noted that
the purpose of removing the employee to the area of the safe was so
that the defendant could obtain drugs from the safe. Id. The
Court explained that this movement did not support a separate
kidnapping conviction:
To permit separate and additional punishment
where there has been only a technical
asportation, inherent in the other offense
perpetrated, would violate a defendant's
constitutional protection against double
jeopardy. In an armed robbery, for example,
punishment for two offenses would be
sanctioned if the victim was forced to walk a
short distance towards the cash register or to
move away from it to allow defendant access.
Under such circumstances the victim is not
exposed to greater danger than that inherent
in the armed robbery itself, nor is hesubjected to the kind of danger and abuse the
kidnapping statute was designed to prevent.
Id. (emphasis added).
In determining whether the trial court correctly denied
defendant's motion to dismiss, we “must view the evidence in the
light most favorable to the State, giving the State the benefit of
every reasonable inference to be drawn from it.” State v.
Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382 (1988). In the
instant case, the State produced evidence that defendant grabbed
the victim and dragged her away from the cash register. Defendant
and the victim struggled, but then defendant picked her up and
carried her off to the last set of clothes racks behind the
register and slung her against a pipe. Based on the testimony of
the victim and Mr. Johnson, the jury could reasonably infer that
after the victim was grabbed and pulled back from the cash register
when Mr. Johnson was next to the register and able to draw money
from it, the additional act of defendant carrying her away and
slinging her against a metal pipe exposed her to “a greater danger
than that inherent in the armed robbery itself.” See Irwin, 304
N.C. at 103, 282 S.E.2d at 446. In the light most favorable to the
State, moving the victim eleven feet away from the register and
slinging her against a pipe with sufficient force to knock her
unconscious was not an inevitable part of defendant's obtaining
access to the cash register. Cf. Irwin, 304 N.C. at 103, 282
S.E.2d at 446 (“To accomplish defendant's objective of obtaining
drugs it was necessary that either [the store owner or the
employee] go to the back of the store to the prescription counterand open the safe.”). The credibility of the victim and Mr.
Johnson was an issue for the jury, see State v. Locklear, 322 N.C.
at 358, 368 S.E.2d at 383, and any contradiction in the evidence,
e.g., whether the victim was thrown in order to complete the
robbery, must be resolved by the jury. See State v. Gibson, 342
N.C. 142, 150, 463 S.E.2d 193, 199 (1995) (discrepancies and
contradictions are for the jury to resolve).
In conclusion, then, defendant's act of carrying the victim to
the clothes racks and throwing her onto a metal pipe was more than
a technical asportation inherent in the commission of the robbery.
Thus, there was substantial evidence that defendant restrained and
removed the victim beyond the acts necessary to commit the robbery.
We affirm the trial court's denial of defendant's motion to dismiss
the kidnapping charge.
Next, defendant contends that the trial court erred in
declining to order a mistrial as a result of the prosecutor's
conduct of hugging one of the State's witnesses, Ms. Swinney, as
she left the witness stand. The record reflects that after Ms.
Swinney finished testifying and stepped down from the stand, she
gave the assistant district attorney a hug. Defendant objected to
this conduct and, the following day, made a motion for a mistrial.
Defendant argued that this nonverbal expression by the State
improperly bolstered the credibility of the witness before the
jury. However, the trial court determined that the conduct did not
cause substantial and irreparable prejudice to defendant's case and
denied the motion. The standard of the granting of a mistrial is set forth in
N.C. Gen. Stat. § 15A-1061, which provides in pertinent part as
follows:
Upon motion of a defendant or with his
concurrence the judge may declare a mistrial
at any time during the trial. The judge must
declare a mistrial upon the defendant's motion
if there occurs during the trial an error or
legal defect in the proceedings, or conduct
inside or outside the courtroom, resulting in
substantial and irreparable prejudice to the
defendant's case.
N. C. Gen. Stat. § 15A-1061 (2005). A decision to grant or deny a
motion for a mistrial is within the trial court's sound discretion.
See State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 36 (1995),
cert. denied, 517 U.S. 1110, 134 L. Ed. 2d 482 (1996). This Court
will not reverse the trial court's decision unless it is so clearly
erroneous as to constitute a manifest abuse of discretion. Id.
We find particularly helpful to our analysis this Court's
discussion of the purpose behind the discretion accorded the trial
court in deciding whether to grant a mistrial following a display
of emotion in the courtroom:
Not every disruptive event occurring during
the course of the trial requires the court
automatically to declare a mistrial, and if in
the sound discretion of the trial judge it is
possible, despite the untoward event, to
preserve defendant's basic right to receive a
fair trial before an unbiased jury, then the
motion for mistrial should be denied. On
appeal, the decision of the trial judge in
this regard is entitled to the greatest
respect. He is present while the events
unfold and is in a position to know far better
than the printed record can ever reflect just
how far the jury may have been influenced by
the events occurring during the trial and
whether it has been possible to erase theprejudicial effect of some outburst.
Therefore, unless his ruling is clearly
erroneous so as to amount to a manifest abuse
of discretion, it will not be disturbed on
appeal.
State v. Sorrells, 33 N.C. App. 374, 376-77, 235 S.E.2d 70, 72
(internal citations and quotations omitted) (quoted in State v.
Ward, 338 N.C. 64, 92-93, 449 S.E.2d 709, 724 (1994)), disc. review
denied, 293 N.C. 257, 237 S.E.2d 539 (1977).
Here, even assuming that the hug initiated by Ms. Swinney may
be characterized as an emotional outburst, defendant has not shown
that the exchange between the State and its witness denied him a
fair trial. The trial court entered findings on the record
following a voir dire held in response to defendant's motion.
After reciting the correct statutory standard for declaring a
mistrial, the trial court inquired further into the circumstances
of the hug. The assistant district attorney stated that the
witness had been inconvenienced greatly in traveling to testify in
this trial and that his gesture to the witness was no different
than a handshake. The trial court then considered the jury's
perceptions of the gesture and found that defendant was not
substantially prejudiced. As the trial judge was in the best
position to assess the prejudicial effect of this conduct by
observing the reactions of the jurors, we decline to overrule his
decision where it is not so clearly erroneous as to be a manifest
abuse of discretion. Accordingly, we affirm the trial court's
denial of defendant's motion for a mistrial. Next, defendant assigns error to the trial court's evidentiary
ruling excluding the testimony of defendant's witness Brenda
Murray. The trial court conducted a voir dire, outside the
presence of the jury, to evaluate the proffered testimony of this
witness. Ms. Murray testified that on the morning of 8 November
2002 she was walking from her home to the Quick Stop and observed
two black males run past her. She stated that, based upon the
complexions and hairstyles of the two men she observed, defendant
was not one of them. Ms. Murray stated that she was under the
influence of alcohol at the time she saw the two males but that it
had no effect upon her ability to determine whether either of them
was defendant. The witness's testimony on where she first saw the
men was inconsistent: at first, she stated she saw them come out
the back door of Hamont Cleaners; she later clarified this point
and stated that she saw them come from behind the cleaners but not
from the cleaners or its back door. When asked what time she saw
the two men, the witness responded that it was between 6:30 and
7:00 a.m. and that it was light enough to see at that time. Within
its proper discretion, the trial court weighed the probative value
of the testimony against its likelihood to confuse the issues or
mislead the jury. See N.C. Gen. Stat. § 8C-1, Rule 403 (2005).
The trial court concluded, based upon the witness's confusion as to
the time frame and the inconsistencies regarding the location of
the two males when she observed them, that the probative value of
the testimony was substantially outweighed by its likelihood to
confuse or mislead the jury. We review the trial court's ruling pursuant to Rule 403 for an
abuse of discretion:
Exclusion of evidence on the basis of Rule 403
is within the sound discretion of the trial
court, and abuse of that discretion will be
found on appeal only if the ruling is
manifestly unsupported by reason or is so
arbitrary it could not have been the result of
a reasoned decision.
State v. White, 349 N.C. 535, 552, 508 S.E.2d 253, 264 (1998)
(internal quotations omitted), cert. denied, 527 U.S. 1026, 144 L.
Ed. 2d 779 (1999). The trial court did not rule that the proffered
testimony was irrelevant and thus inadmissible under Rule 401;
rather, the court conducted a balancing test under Rule 403.
Defendant nonetheless argues that, because the testimony of Ms.
Murray tends to make the fact of defendant's guilt less probable,
the court erred in ruling that the testimony was irrelevant. We
are not presented with a situation where the trial court ruled as
a matter of law that the challenged evidence was irrelevant. Cf.
State v. Cotton, 318 N.C. 663, 668, 351 S.E.2d 277, 280 (1987)
(when trial court has discretion to rule evidence inadmissible
under Rule 403 but instead erroneously rules the evidence is
irrelevant under Rule 401 as a matter of law, the prejudiced party
is entitled to relief). After carefully considering the
inconsistencies between the time of the events Ms. Murray testified
to and the time of the robbery, and also the inconsistencies as to
the location of the two men when she observed them, the trial court
did not abuse its discretion in ruling the evidence inadmissible
under Rule 403. We overrule defendant's assignment of error. Finally, defendant challenges the trial court's evidentiary
ruling concerning the State's witness Batwa Allen. At a voir dire
hearing, the State proffered the testimony of Ms. Allen as evidence
of motive under Rule 404(b) of the North Carolina Rules of Evidence
to establish that defendant had a need for money. Specifically,
the State offered the testimony of Ms. Allen that a few days before
the robbery defendant came into the Quick Stop where she was
working and asked what she would do if he came in and asked for all
her money. Defendant objected, asserting that this statement
defendant made several days before the robbery was not relevant and
that the probative value was substantially outweighed by the
prejudicial value of the testimony. The trial court, in overruling
defendant's objection to the admission of the Allen testimony,
noted that it would instruct the jurors that they may consider the
evidence only for the purpose of defendant's motive to commit the
robbery. Ms. Allen testified before the jury as follows:
. . . [Defendant] came in and any other time
when he came in, you know, we, you know pass
words as a playing thing. And he came in and
it was him and somebody else and he was like,
What would you do if I robbed you? I said, I
wouldn't do nothing but just send the police
across the street where you live at. You know
what I'm saying? He said, I thought we was
cool. I said, if we was cool, you would have
never said that, you know, in a joking manner
but it wasn't nothing I took serious.
The trial court gave a limiting instruction immediately following
Ms. Allen's testimony.
Defendant contends that the statements to Ms. Allen are not
indicative of motive. However, Rule 404(b) is a “general rule ofinclusion of relevant evidence of other crimes, wrongs or acts by
a defendant, subject to but one exception requiring its exclusion
if its only probative value is to show that the defendant has the
propensity or disposition to commit an offense of the nature of the
crime charged.” State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d
48, 54 (1990). Defendant's reference to obtaining money, either
lawfully of unlawfully, is indicative of a motive to commit
robbery. Defendant argues in the alternative that the testimony
regarding defendant's statements to Ms. Allen was unfairly
prejudicial and should have been excluded under Rule 403. However,
the trial court gave a proper limiting instruction and admonished
the jury not to consider the testimony as evidence that defendant
is of bad character and therefore more likely to have committed the
offenses charged. See State v. Hyatt, 355 N.C. 642, 662, 566
S.E.2d 61, 74-75 (2002) (trial court guarded against prejudice by
giving a limiting instruction to the jury that Rule 404(b) evidence
may not be considered as character evidence), cert. denied, 537
U.S. 1133, 154 L. Ed. 2d 823 (2003). We find no abuse of the trial
court's discretion in admitting the testimony of Ms. Allen.
No error.
Judges McCULLOUGH and LEVINSON concur.
Report Per Rule 30(e).
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