Appeal by defendant from judgments entered 15 September 2004
by Judge Ronald E. Spivey in Moore County Superior Court. Heard in
the Court of Appeals 30 November 2005.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Daniel D. Addison, for the State.
Kevin Patrick Bradley for defendant-appellant.
Stanley Henri Crawford (defendant) appeals from judgments
entered consistent with jury verdicts finding him guilty of first
degree rape, first degree kidnapping, and assault with a deadly
weapon inflicting serious injury. Defendant argues he received
ineffective assistance of counsel, and that the trial court erred
in denying his motion to dismiss the charge of kidnapping.
Defendant further contends the trial court erred by imposing a
prison sentence upon him not in accordance with the minimum and
maximum ranges provided by sections 15A-1340.17(c) and (e) of the
North Carolina General Statutes. For the reasons stated herein, we
find no error in defendant's convictions, but remand for
resentencing. The State presented evidence tending to show that on 2 June
2003, the prosecutrix (D.M.), a maintenance worker, entered the
basement of an apartment building where she was employed in
Aberdeen, North Carolina. When she entered the basement,
defendant, who was waiting behind the door, grabbed D.M. in a bear
hug, held her tightly, and asked her several questions. Defendant
then shoved her down and struck her four to six times in the head
with a flashlight. D.M.'s head began bleeding, and defendant
forced D.M. to climb the stairs to his apartment. Once inside the
apartment, defendant flung D.M. against the bathroom wall and
forced her to lean over the side of the bathtub. Defendant bound
D.M.'s hands behind her back with the cord of a heating pad and
forced her into the hallway and onto the floor. He attempted to
put a rag into D.M.'s mouth, but she spat it out. Defendant
removed D.M.'s clothes and engaged in vaginal, oral, and anal
intercourse with her. Defendant then forced D.M. into his bedroom,
where he had sexual intercourse with her numerous additional times,
for approximately two and one-half to three hours.
When defendant stopped, D.M. told him she had to leave.
Defendant said, 'I made a big mistake[,]' and 'I know you're
going to turn me in.' D.M. assured him that she would not.
Defendant gave D.M. a clean shirt to wear, and D.M. left her own
bloodstained t-shirt in defendant's apartment. Defendant allowed
D.M. to leave.
D.M. immediately reported the incident to the police, who
later took a statement from D.M. D.M. then sought medicalattention for her injuries, which included multiple contusions,
hematomas, and abrasions around her head and neck. The lacerations
on the left side of D.M.'s head were deep, requiring eight staples
to close. D.M. had severe migraine headaches for several weeks
after the attack. D.M. also had significant bruising and abrasions
which were inconsistent with consensual sexual relations. Linear
bruise marks around D.M.'s wrists were consistent with being tied
up with a significant amount of force.
Defendant testified he was in the apartment basement [w]hen
the door burst open [and] it scared me and I reacted and I swung
the flashlight and struck D.M. by mistake. When defendant
realized his mistake, he apologized and invited D.M. upstairs to
his apartment in order to treat the lacerations to her head.
Defendant testified that, after D.M. cleaned the blood from her
face, they began talking about sexual intercourse. Defendant
stated they then engaged in consensual oral, vaginal, and anal
intercourse. Defendant denied restraining D.M., and stated that
the heating pad was in a drawer.
Upon consideration of the evidence, the jury found defendant
guilty of first degree rape, first degree kidnapping, and assault
with a deadly weapon inflicting serious injury. The trial court
sentenced defendant to a term of 375 to 459 months on the first
degree rape conviction. The trial court consolidated the other two
offenses and imposed a consecutive sentence of fifty to sixty-nine
months imprisonment. Defendant appeals.
I. Ineffective Assistance of Counsel
By his first assignment of error, defendant contends he
received ineffective assistance at trial when the State cross-
examined him regarding his failure to mention his defense at any
point prior to trial. Defendant contends that the State's cross-
examination violated his Fifth Amendment right against
self-incrimination, and that defense counsel's failure to object
constituted ineffective assistance of counsel. We disagree.
A defendant's right to remain silent is protected by the Fifth
Amendment to the United States Constitution, as well as by Article
I, Section 23 of the North Carolina Constitution. State v.
, 70 N.C. App. 421, 424, 320 S.E.2d 297, 300 (1984).
[A]ny comment [by the State at trial] upon the exercise of this
right, nothing else appearing, [is] impermissible. Id
[is] fundamentally unfair to impeach defendants concerning their
post-arrest silence after they had been impliedly assured through
warnings that their silence would not result in any
penalty. State v. Lane
, 301 N.C. 382, 384, 271 S.E.2d 273, 275
However, [t]he shield provided by Miranda cannot be perverted
into a license to use perjury by way of a defense, free from the
risk of confrontation with prior inconsistent utterances. Harris
v. New York
, 401 U.S. 222, 226, 28 L. Ed. 2d 1, 5 (1971) (holding
that the trial court did not err by allowing the prosecutor to
introduce into evidence prior inconsistent statements, made by the
accused, for the purpose of impeaching the defendant's
credibility). When a defendant chooses to testify in his ownbehalf . . . his 5th amendment right to remain silent must give way
to the state's right to seek to determine, by way of impeachment,
whether a defendant's prior silence is inconsistent with his trial
, 70 N.C. App. at 424, 320 S.E.2d at 300.
Under the Rules of Evidence, a prior statement is considered
inconsistent if it fails to mention a material circumstance
presently testified to which would have been natural to mention in
the prior statement. . . . [E]ven the failure to speak may be
considered an inconsistent statement and proper for impeachment.
State v. Fair
, 354 N.C. 131, 157, 557 S.E.2d 500, 519 (2001)
To determine whether a defendant's prior silence is an
inconsistency, [t]he test is whether, under the circumstances at
the time of arrest, it would have been natural for [the] defendant
to have asserted the same defense asserted at trial. McGinnis
N.C. App. at 424, 320 S.E.2d at 300 (holding that it would clearly
have been natural for defendant to have told the arresting police
officer that the shooting with which defendant was accused was
accidental, if defendant believed that to be the case); see also
, 301 N.C. at 386, 271 S.E.2d at 276.
As in Lane
, [t]he crux of this case is whether it would have
been natural for defendant to have mentioned his . . . defense at
the time of his arrest. Id
. Here, defendant faced accusations of
assault and rape. At the time of defendant's arrest, on the same
day the victim alleges defendant assaulted and raped her, defendant
was silent with regard to any defense. At trial, however,defendant testified as to the accidental nature of the assault and
the consensual nature of the sexual encounter.
We conclude that it would have been natural at the time of
defendant's arrest for defendant to have offered his explanation to
the police that he struck D.M. with the flashlight by mistake and
that she consented to the sexual intercourse with him afterwards.
His claims to this effect at trial raised legitimate questions
concerning his failure to offer these explanations at the time of
his arrest, or any time prior to his trial. Under the facts of
this case, the failure of defendant to state his defense at the
time of his arrest or at any time prior to trial amounted to a
prior inconsistent statement. The State's cross-examination
concerning defendant's silence revealed that his silence was, in
fact, inconsistent with his statements at trial. Therefore, the
State's questions were within the proper scope of impeachment and
did not violate defendant's Fifth Amendment right against self-
As the evidence the State sought to admit was, in fact,
admissible for purposes of impeachment as a prior inconsistent
statement, defense counsel's failure to object did not constitute
ineffective assistance of counsel. This assignment of error is
Defendant next contends that the trial court erred in denying
his motion to dismiss the kidnapping charge because there was
insufficient evidence to show defendant restrained the victim forthe purpose of doing serious bodily harm. Specifically, defendant
argues that the evidence of serious injury (in this case, the
lacerations to D.M.'s head) occurred before
he bound her with the
cord of the heating pad. Defendant contends this was the only
evidence that he confined or restrained D.M., and that the serious
bodily harm was therefore the means
rather than the purpose
removal. State v. Moore
, 315 N.C. 738, 749, 340 S.E.2d 401, 408
(1986). We disagree.
In ruling on a motion to dismiss, the issue before the trial
court is whether there is substantial evidence of each element of
the offense charged, and that the defendant was the perpetrator of
the offense. State v. McAvoy
, 331 N.C. 583, 589, 417 S.E.2d 489,
493 (1992). The issue of whether the evidence presented
constitutes substantial evidence is a question of law for the
court. State v. Earnhardt
, 307 N.C. 62, 66, 296 S.E.2d 649, 652
(1982). If the trial court finds substantial evidence for each
element, the motion is properly denied. State v. Benson
, 331 N.C.
537, 544, 417 S.E.2d 756, 761 (1992). Substantial evidence is
'such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.' State v. Vause
, 328 N.C. 231,
236, 400 S.E.2d 57, 61 (1991) (quoting State v. Smith
, 300 N.C. 71,
78-79, 265 S.E.2d 164, 169 (1980)). In reviewing a trial court's
denial of a motion to dismiss, this Court must consider the
evidence in the light most favorable to the State, giving the State
the benefit of all permissible favorable inferences. Earnhardt
307 N.C. at 67, 296 S.E.2d at 652-53. Kidnapping is defined by section 14-39 of our General
Statutes, which provides, in pertinent part, the following:
(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 . . .
shall be guilty of kidnapping if such
confinement, restraint or removal is for the
. . .
(3) Doing serious bodily harm to or
terrorizing the person so confined,
restrained or removed . . . .
N.C. Gen. Stat. § 14-39 (2005). Since kidnapping is a specific
intent crime, the State must prove that the defendant unlawfully
confined, restrained, or removed the person for one of the eight
purposes set out in the statute. Moore
, 315 N.C. at 743, 340
S.E.2d at 404.
The term 'restrain,' while broad enough to include a
restriction upon freedom of movement by confinement, connotes also
such a restriction, by force, threat or fraud, without a
confinement. Thus, one who is physically seized and held . . . is
restrained within the meaning of this statute. State v. Fulcher
294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). 'Restraint does
not have to last for an appreciable period of time[.]' State v.
, 157 N.C. App. 535, 538, 579 S.E.2d 463, 466 (2003)
(holding that the defendant restrained the victim by grabbing him
while he was seated inside his car, throwing him to the ground, and
knocking him onto the hood of his car; this constituted restraint
because the victim could not flee from the defendant while thedefendant continued to hold the victim and assault him) (quoting
State v. Brayboy
, 105 N.C. App. 370, 375, 413 S.E.2d 590, 593
Here, the State presented evidence to support the charge of
first degree kidnapping. Notwithstanding defendant's argument to
the contrary, there was evidence from which a reasonable juror
could conclude that defendant restrained D.M. for the purpose of
inflicting serious bodily injury, and that some restraint occurred
prior to defendant's striking D.M. with the flashlight. D.M.
testified that the encounter began when defendant held D.M. in a
bear hug[.] D.M. stated that as she entered the basement,
defendant was behind the door and holding onto a flashlight.
D.M. testified that he came at me[,] grabbed me up in a bear
hug[,] clinched me real tight[,] and asked her several questions
as he held her. Thereafter, defendant shoved [D.M.] down and
started hitting [her] on the side of the head with that
flashlight. D.M. stated that she was crunched up on my side kind
of in a fetal position when defendant struck her head with his
flashlight between four and six times, causing an injury that
required eight staples.
When viewed in a light most favorable to the State,
defendant's actions of grabbing D.M. and holding her tightly in a
bear hug provide sufficient evidence to show restraint for the
purpose of doing serious bodily harm. We therefore overrule this
assignment of error.
By his final assignment of error, defendant contends, and the
State agrees, that the trial court erred by imposing a prison
sentence for kidnapping and assault which was not in accordance
with the presumptive range provided by sections 15A-1340.17(c) and
(e) of the General Statutes for defendant's prior record level. We
agree, and remand defendant's case for resentencing.
Defendant was a prior record level IV offender at the time of
sentencing. The trial court expressed its intention to sentence
defendant in the presumptive range, for prior record level IV
offenders, class E. This would have permitted the court to
sentence defendant to a minimum number of thirty-seven to forty-six
N.C. Gen. Stat . 15A-1340.17(c) (2005). Depending on
the minimum number of months the court selected, the corresponding
maximums would have been between fifty-four and sixty-five months.
N.C. Gen. Stat. . 15A-1340.17(e). The trial court erred by
sentencing defendant to fifty to sixty-nine months.
We find no error in defendant's convictions, but we remand the
judgments of kidnapping and assault with a deadly weapon inflicting
serious injury (03CRS006365 and 03CRS006366) for resentencing.
No error, remanded for resentencing.
Judges McCULLOUGH and GEER concur.
Report per Rule 30(e).
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