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.
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
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
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
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. §
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
, 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.
, 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
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.
, 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
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
, 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
An admission to a jury of a criminal defendant's guilt without
the consent of the defendant amounts to per se
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
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
his counsel [was] going to make such a concession."
. 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
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
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.
"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.
, 137 N.C. App. 495, 500-01, 529 S.E.2d 247, 251, cert.
, 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
Affirmed in part; remanded in part.
Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).
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