An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-456


Filed: 21 March 2006


v .                         Alamance County
                            No. 04 CrS 3697, 50197-98

    Appeal by defendant from judgment dated 3 September 2004 by Judge Evelyn Hill in Superior Court, Alamance County. Heard in the Court of Appeals 28 November 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Fred Lamar, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate     Defender Constance E. Widenhouse, for defendant.

    McGEE, Judge.

    Stevie Douglas Ivey (defendant) was indicted by an Alamance County grand jury on one count each of attempted common law robbery, assault inflicting serious injury, first-degree kidnapping, and attempted second-degree rape. The grand jury also returned an habitual felon indictment against defendant. Defendant was convicted of attempted common law robbery, simple assault, and first-degree kidnapping. The jury found defendant not guilty of attempted second-degree rape. The trial court arrested judgment on the conviction of attempted common law robbery. The jury found defendant to be a violent habitual felon, and the trial court sentenced defendant to life imprisonment without parole.
    The State presented evidence at trial that tended to show thaton 7 January 2004, Angela Johnson (Johnson) lived in Liberty, North Carolina, with her husband and eight-year-old son, Nicholas. At approximately 7:00 a.m., Johnson left Nicholas inside their mobile home while Johnson went outside to the carport to start her vehicle. Johnson was wearing jogging pants, a tee shirt, a lightweight sweat jacket, and a heavy coat. Johnson testified she sat down in the front seat of her vehicle with her left leg outside the vehicle and the door pulled back against her leg. Before Johnson put her keys in the ignition, she saw a white male, later identified as defendant, approaching her with his hand extended and wiggling his fingers "as if to say come here." Defendant was wearing "brand new" white tennis shoes and a black jacket with the hood pulled down over his eyes.
    Johnson testified that defendant pulled open the vehicle door, demanded money, and pushed Johnson over into the passenger-side floorboard. Johnson told defendant she did not have any money. Defendant grabbed Johnson by the back of the head, pushed her into the console, and said, "Shut up, bitch. Turn around. Don't look at me." Johnson told defendant her pocketbook was in the trunk of the vehicle. Defendant pulled Johnson out of the vehicle "by the hair" and "took" her to the rear of the vehicle. Johnson testified defendant pushed her down across the trunk and lay over her, "running his finger around the lining of the top of [Johnson's] pants." Johnson felt defendant "rub[bing] his penis" against her backside. Johnson testified she could not open the trunk to get to her pocketbook because defendant had her pinned to the closedtrunk.
    Defendant pulled Johnson off of the trunk of the vehicle by her hair. Johnson opened the trunk, showed defendant the contents of her pocketbook, and asked him to take the pocketbook and leave. Defendant refused the pocketbook, which contained credit cards and a checkbook, but no cash. Johnson testified that, after she offered defendant her pocketbook, defendant pushed her down in the gravel behind the vehicle and asked, "Who's in the house?" Johnson replied that her son, Nicholas, was inside.
    Still holding Johnson by her hair, defendant forced Johnson into the house and stopped in the laundry room. From there, Johnson could see Nicholas standing up in his chair, and she yelled for him to call 911. Nicholas headed to the bedroom. Defendant threw Johnson onto the floor, cursing and threatening to kill her and Nicholas, and told Johnson to call Nicholas back. Nicholas returned from the bedroom and said the phone did not work. Defendant called Johnson a "stupid bitch" and said he had cut the phone line. Nicholas ran toward the front door, and Johnson lost sight of him.
    Defendant took Johnson into the kitchen and pushed her down on the floor. They struggled on the floor, with defendant lying on top of Johnson and pushing her head into the floor. Johnson testified defendant would let her get to her feet, and then would throw her "right back down." Eventually, Johnson came out of her coat to break free from defendant. Defendant did not let go of Johnson's hair, and Johnson felt her hair "coming out" as she ranaway. Johnson ran to her brother's house, meeting up with Nicholas on the way. Johnson suffered muscle strains, bruising, neck pain, and a laceration on her hand, as well as the loss of chunks of her hair.
    Johnson testified she did not recognize her attacker, but she told Deputy Sheriff Roger Lloyd (Deputy Lloyd) she thought the attacker might be her niece's boyfriend. Johnson's mother told Deputy Lloyd the boyfriend's name was Steve, and Deputy Lloyd suspected defendant, who lived a mile or less from Johnson's home. Deputy Lloyd and two other officers went to the mobile home where defendant lived with his cousin, Steven Eastwood (Eastwood), and Eastwood's parents. Defendant consented to a search of his bedroom, where Deputy Lloyd seized a pair of shoes later identified by Johnson as the shoes worn by her attacker.
    The State introduced into evidence an audiotape recording of Deputy Lloyd's interview with defendant at the Alamance County Sheriff's Department, as well as a transcript of the interview. During the interview, defendant stated he knew Johnson was his girlfriend's aunt, and he knew where Johnson lived. Defendant said his girlfriend's family did not want her to date defendant because he had a prior criminal record. Defendant stated that on the evening of 6 January 2004, he went to a club in Greensboro with friends. Defendant drank a total of about fifteen beers and snorted cocaine. Defendant returned home from the club between 2:00 and 3:00 a.m. Defendant stated that he asked Eastwood for a condom, but Eastwood did not give him one. Defendant went back tohis bedroom and drank a few more beers, and did not remember much after that until he went to Johnson's house.
    Defendant said he went to Johnson's house for the purpose of robbing her. Defendant chose Johnson because her family had taken away his girlfriend, who was "the thing [defendant] cared the most about." Defendant told Deputy Lloyd he did not remember being on the floor of Johnson's kitchen or struggling with Johnson. Defendant said he did not take anything from Johnson or from Johnson's house.
    Eastwood testified that defendant returned from the club at around 4:00 a.m. Defendant's speech was slurred and he smelled of alcohol. Defendant showed Eastwood about 1.8 grams of cocaine, which Eastwood cooked into crack for defendant. Defendant smoked the crack, and Eastwood went back to bed.
    Defendant appeals from his sentence of life without parole. Defendant argues four assignments of error. Defendant's remaining assignment of error, not argued on appeal, is deemed abandoned. N.C.R. App. P. 28(b)(6).

    Defendant argues the trial court erred in denying his motion to dismiss the charge of first-degree kidnapping. Defendant contends there was insufficient evidence of the element of confinement, restraint, or removal to support a conviction for kidnapping. We disagree.
    When ruling on a motion to dismiss, the trial court must determine whether the State has presented substantial evidence ofevery essential element of the offense charged. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). When reviewing a trial court's motion to dismiss, "'we . . . view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.'" State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002) (quoting State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992)). "'Contradictions and discrepancies do not warrant dismissal of [a] case but are for [a] jury to resolve.'" Id.
    Kidnapping is defined as an act of:
        (a) . . . unlawfully confin[ing], restrain[ing], or remov[ing] from one place to another, any other person 16 years of age or over without the consent of such person . . . if such confinement, restraint or removal is for the purpose of:

            . . . .
            (2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony[.]
N.C. Gen. Stat. § 14-39(a)(2) (2005). "If the person kidnapped . . . was not released by the defendant in a safe place . . ., the offense is kidnapping in the first degree[.]" N.C. Gen. Stat. § 14-39(b) (2005).
    When a kidnapping charge is based on an allegation that the confinement, restraint, or removal was for the purpose offacilitating a felony, a defendant is usually also charged with the underlying felony. State v. Parker, 81 N.C. App. 443, 447, 344 S.E.2d 330, 332 (1986). Our Supreme Court has noted that this practice can violate the constitutional prohibition on double jeopardy. See State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978). In Fulcher, our Supreme Court held that the General Assembly did not intend the element of restraint inherent in some felonies to also constitute the element of restraint necessary for a conviction of kidnapping. Fulcher, 294 N.C. at 523, 243 S.E.2d at 351. To hold otherwise would constitute double jeopardy. Id. Following Fulcher, our appellate courts have held that, in order to constitute kidnapping, a defendant's restraint or removal of a victim must be "separate and apart from that which is an inherent, inevitable part of the commission of another felony." State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981). Moreover, "the key question is whether the kidnapping charge is supported by evidence from which a jury could reasonably find that the necessary restraint for kidnapping exposed the victim to greater danger than that inherent in the underlying felony itself." State v. Muhammad, 146 N.C. App. 292, 295, 552 S.E.2d 236, 237 (2001).
    In the present case, Johnson testified that after she told defendant her pocketbook was in the trunk of her vehicle, defendant "laid [her] over the trunk, and he rubbed his penis on [her], and he grabbed a hold of the top of [her] pants and he kept pulling around [her] pants." After Johnson showed defendant that she had no cash in her pocketbook, defendant threw her down on the gravel. Defendant asked Johnson who was inside the house. Defendant then forced Johnson into the house by pulling her by her hair. Once inside the house, defendant and Johnson struggled on the kitchen floor, with defendant lying on top of Johnson and "rub[bing] [her head] all into the kitchen floor." Moreover, defendant admitted he asked Eastwood for a condom prior to going to Johnson's house. Defendant did not take any money or other property from Johnson's house.
    Defendant argues his case is analagous to Irwin, in which our Supreme Court held that the removal of a victim at knife point to the back of a store was an inherent and integral part of an attempted armed robbery. Irwin, 304 N.C. at 103, 282 S.E.2d at 446. Defendant also cites State v. Featherson, in which this Court held that a defendant's act of ordering a restaurant employee to lie down, and then loosely binding her, did not expose the employee, who was already in the same room as the robbers, to any greater danger than that inherent in the armed robbery itself. Featherson, 145 N.C. App. 134, 139-40, 548 S.E.2d 828, 832 (2001).     Unlike the facts of Irwin, defendant in the present case "did substantially more than just force [Johnson] to walk from one part of [a building] to another." Muhammad, 146 N.C. App. at 296, 552 S.E.2d at 238. In the present case, unlike in Featherson, Johnson was not simply ordered to lie down and then loosely bound. Rather, we find the facts of the present case more analagous to the facts of Muhammad, in which a restaurant employee was placed in a choke hold, hit in the side, wrestled with on the floor, grabbed againaround the throat, had a gun pointed at his head, and was marched to the front of the restaurant. Muhammad, 146 N.C. App at 295-96, 552 S.E.2d at 238. Our Court's decision in Muhammad was that those actions by the defendant exposed the victim to danger greater than that inherent in attempted common law robbery. Id. So too, here, we hold that there was sufficient evidence from which a jury could reasonably find that defendant's actions exposed Johnson to greater danger than that inherent in the attempted common law robbery itself. This assignment of error is overruled.
    Defendant argues he was denied his state and federal constitutional rights to effective assistance of counsel. Defendant contends that during closing arguments, defense counsel conceded that defendant was guilty of false imprisonment without defendant's consent or approval. We find this argument has some merit.
    An admission to a jury of a criminal defendant's guilt without the consent of the defendant amounts to per se ineffective assistance of counsel. State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986). Our Supreme Court has interpreted Harbison to require "that the decision to concede guilt to a lesser included crime 'be made exclusively by the defendant.'" State v. Matthews, 358 N.C. 102, 109, 591 S.E.2d 535, 540 (2004) (quoting     Harbison, 315 N.C. at 180, 337 S.E.2d at 507). In order to conclude a defendant has made the decision to concede guilt to a lesserincluded offense, "the facts must show, at a minimum, that defendant knew his counsel [was] going to make such a concession." Id. at 109, 591 S.E.2d at 540.
    From the record on appeal, we are unable to determine whether defendant made the decision to concede guilt to the lesser included offense of false imprisonment. Moreover, we are unable to determine, at a minimum, whether defendant knew his attorney planned to concede defendant's guilt to the offense. The transcript contains a colloquy, prior to opening statements, in which defendant consented to his counsel's plan to concede defendant's guilt to attempted common law robbery and simple assault. However, there is no indication from the record that defendant consented to, or even knew about, any plan by his attorney to concede defendant's guilt to false imprisonment during closing argument. Thus, we remand to the trial court for findings of fact and conclusions of law as to defendant's allegation of ineffective assistance of counsel pursuant to Harbison. On remand, the trial court shall conduct a Harbison hearing to determine whether defendant consented to, or at a minimum knew about, his counsel's intention to concede defendant's guilt to false imprisonment.
    Defendant's next two assignments of error allege the trial court lacked jurisdiction to sentence defendant as a violent habitual felon because the indictment was fatally defective on its face. Defendant argues the indictment was fatally defective inthat it failed to name the state against whom the predicate violent felonies were committed, as required in N.C. Gen. Stat. § 14-7.9.
    N.C. Gen. Stat. § 14-7.9 (2005) requires that "[a]n indictment that charges a person with being a violent habitual felon must set forth . . . the name of the state or other sovereign against whom the violent felonies were committed[.]" However, "[i]t is well established that an indictment is sufficient under [N.C.G.S. 14- 7.9] if it provides notice to a defendant that he is being tried as a recidivist." State v. Williams, 99 N.C. App. 333, 335, 393 S.E.2d 156, 157 (1990). Moreover, our Court has held that "the name of the state need not be expressly stated if the indictment sufficiently indicates the state against whom the felonies were committed." State v. Mason, 126 N.C. App. 318, 323, 484 S.E.2d 818, 821 (1997), cert. denied, 354 N.C. 72, 553 S.E.2d 208 (2001).
    In the present case, the indictment sufficiently indicated the state against whom the prior felonies were committed. The words "State of North Carolina" appeared at the top of the indictment and were repeated in the caption of the indictment. Following the caption, the first line of the indictment read that the jurors "for the State" alleged that defendant was a violent habitual felon. It is clear from the caption that "the State" for which the jurors were alleging is the State of North Carolina. Thereafter, for each predicate felony alleged, the indictment read that the felony was committed against "the State." We find that the phrase "the State" was sufficient to give defendant notice that the predicate felonies were committed against the State of North Carolina, given that"State of North Carolina" preceded the abbreviation "the State," and no other state was mentioned in the indictment. See State v. Montford, 137 N.C. App. 495, 500-01, 529 S.E.2d 247, 251, cert. denied, 353 N.C. 275, 546 S.E.2d 386 (2000) (holding that an indictment was sufficient where, at the top of the indictment, "State of North Carolina" appeared with "Carteret County" and, in the body of the indictment, Carteret County was listed as the locale of the predicate felony convictions). This assignment of error is overruled.

    Because we find the indictment was valid, we hold the trial court had jurisdiction to try and sentence defendant on the violent habitual felon charge. Accordingly, we overrule defendant's final assignment of error that the trial court lacked jurisdiction to impose judgment.
    Affirmed in part; remanded in part.
    Chief Judge MARTIN and Judge ELMORE concur.
    Report per Rule 30(e).

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