STATE OF NORTH CAROLINA
Granville County
v. Nos. 04CRS050673
04CRS050675-77
TERRON RASHAD CHAVIS
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Dennis Myers, for the State.
J. Clark Fischer for defendant-appellant.
HUNTER, Judge.
Terron Rashad Chavis (“defendant”) was found guilty of
felonious breaking or entering, first degree rape, two counts of
robbery with a dangerous weapon, and two counts of second degree
kidnapping. He was sentenced to consecutive sentences of 240 to
297 months for first degree rape, twenty-five to thirty-nine months
for each count of second degree kidnapping, sixty-four to eighty-
six months for each count of robbery with a dangerous weapon, and
six to eight months for felonious breaking and entering. For the
reasons stated herein, we find no error.
The State presented evidence tending to show that during the
morning of 5 March 2004, a mother (hereinafter identified by her
initials, “S.F.”) was nursing her five-week-old baby at her homewhen a man came to the door and knocked. She opened the door just
wide enough so the man could see her and the baby. The man, whom
S.F. subsequently identified as defendant, inquired about the woods
adjacent to her house. S.F. answered his question, and as she
started to shut the door, defendant shoved his foot in the door and
displayed a gun. Defendant pushed the door open, put clear plastic
food handling gloves on his hands, and locked the door. S.F.
begged defendant not to kill her. Defendant ordered S.F. to put
the baby down. After she placed the baby on the sofa, defendant
asked her where she kept her knives. S.F. took him into the
kitchen, where he withdrew a knife out of the knife block. S.F.
told defendant that she would give him anything or do anything if
he would “just leave me and the baby alive and leave.”
Defendant then instructed S.F. to walk to the bedroom and
remove her clothes on the way. Defendant entered the bedroom and
he removed his clothes. S.F. performed fellatio on defendant and
engaged in vaginal intercourse with defendant. While S.F. was
performing fellatio, defendant placed the gun to her neck.
Defendant had S.F. reach into his pants and retrieve a condom.
S.F. retrieved two red and white packages, removed a condom from
one of them, and put it on defendant's penis. She then put the
other packet back into his pants. Defendant resumed sexual
intercourse with her. Defendant kept the gun in his hand the
entire time that they were engaged in sexual activity.
Defendant then asked her for money. S.F. gave him all of the
money that she had in the house, a five-dollar bill and a twenty-dollar bill. She told him that she did not usually keep money in
the house and that she usually went to an ATM to get cash whenever
she needed it. Defendant then directed S.F. to drive to an ATM to
withdraw money. Defendant “slunched” down in the backseat with
S.F.'s baby as S.F. drove to the ATM. S.F. got out of the car and
withdrew $200.00 from the machine. Defendant directed her to drive
down an unfamiliar road back to her house. After returning to her
house with defendant, S.F. noticed that defendant's gun did not
have a clip. She attempted to take the knife away from defendant.
The two engaged in a tussle, during which defendant cut a pinky
finger on one of his hands. Defendant made S.F. go back into the
house. Defendant departed after making S.F. “pinkie swear” not to
call the police. S.F. then took a shower and called her husband,
who called law enforcement.
Later in the day on 5 March 2004, Detective Vicki Reid Hicks
(“Detective Hicks”), of the Granville County Sheriff's Department,
interviewed S.F., who told Detective Hicks, among other things,
that she retrieved a reddish and white condom packet out of the
perpetrator's pocket, that she gave the perpetrator $25.00 in cash,
and that she also withdrew $200.00 from the ATM and gave it to the
perpetrator. S.F. described the perpetrator as wearing a white T-
shirt, dark jogging pants, white tennis shoes, and crystal or
diamond earrings in each ear.
After interviewing S.F., Detective Hicks went to defendant's
home on 5 March 2004, and with the written consent of defendant and
his mother, searched defendant's residence. In defendant's room,she collected a white pair of tennis shoes and a pair each of light
brown and dark brown sweat pants lying on the floor beside the bed.
She also seized a reddish pinkish condom in a package and $225.00
in U.S. currency contained in a wallet, consisting of one five-
dollar bill and the remainder in twenty-dollar bills. All but one
of the twenty-dollar bills were “clean” or undamaged. Detective
Hicks saw defendant at the sheriff's office later that evening.
Defendant was wearing “crystal-like earrings, or diamond earrings”
in each ear.
Detective Bryant Strother (“Detective Strother”), of the
Granville County Sheriff's Department, testified that he saw
defendant when he came to the sheriff's department on 5 March 2004.
He took a photograph of a cut on defendant's little finger of his
right hand.
Wendy Medlin, a certified sexual assault nurse examiner,
examined S.F. at Maria Parham Hospital on 5 March 2004. She
observed fresh tears in S.F.'s vagina, bruises on the vaginal wall,
and bruising on the cervix.
S.F. testified that she had abstained from sexual activity, at
the direction of her obstetrician, since the birth of her baby.
S.F.'s obstetrician testified that he delivered S.F.'s baby
vaginally on 27 January 2004 and that S.F. sustained no injury to
her vaginal area during delivery. He confirmed that he had
instructed S.F. to abstain from vaginal intercourse for six weeks
after the birth of her baby. Three days later, S.F.'s husband found a pair of plastic
gloves in weeds approximately 235 feet from the driveway of his
house. Detective Jimmy Noblin (“Detective Noblin”), of the
Granville County Sheriff's Department, responded to his call about
the discovery of the gloves. Detective Noblin recovered the
gloves, one of which contained what appeared to be a blood stain.
Agent Susie Barker, a forensic serologist with the State
Bureau of Investigation (“SBI”), testified that she tested the
glove and determined that the reddish stain was blood. She took a
swab of the stain and forwarded it for DNA testing by another
agent. Agent Amanda Daughtry, a forensic DNA analyst with the SBI,
testified that she tested the swab taken from the glove and
determined that the DNA in the swab matched a known DNA sample
taken from defendant.
Defendant presented three witnesses who testified that they
saw defendant or talked on the telephone with him on the morning of
5 March 2004.
Defendant testified and denied ever seeing S.F. or being at
her house. He acknowledged that he knew S.F.'s stepdaughter, who
had falsely accused him of coming to her house and having sex with
her. He explained that he had the cut on his finger because his
dog “nipped” him.
Defendant brings forward two arguments.
First, he contends the court committed plain error by allowing
three witnesses to testify, for corroborative purposes, regarding
statements made by S.F. to them. He argues the statements were notcorroborative of her trial testimony, inasmuch as the witnesses
testified that S.F. told them that the perpetrator threatened to
kill her and her baby, to which S.F. did not testify at trial.
By assigning plain error, defendant concedes that he did not
object to admission of the evidence in the court below. See State
v. Oliver, 309 N.C. 326, 334, 307 S.E.2d 304, 312 (1983).
Consequently, our review is limited to determining whether this
case is
“the exceptional case where, after reviewing
the entire record, it can be said the claimed
error is a 'fundamental error, something so
basic, so prejudicial, so lacking in its
elements that justice cannot have been done,'
or 'where [the error] is grave error which
amounts to a denial of a fundamental right of
the accused,' or the error has '“resulted in a
miscarriage of justice or in the denial to
appellant of a fair trial”' or where the error
is such as to 'seriously affect the fairness,
integrity or public reputation of judicial
proceedings' or where it can be fairly said
'the instructional mistake had a probable
impact on the jury's finding that the
defendant was guilty.'”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.
1982) (footnotes omitted)). Our review of the record persuades us
that this case is not that exceptional case. Although S.F. did not
testify in express words that defendant threatened to kill them,
she did testify that she was afraid defendant was going to kill her
and her baby. Moreover, she testified that defendant displayed a
gun and knife, two weapons capable of killing. Defendant's
displaying of the gun and knife implied a threat to kill.
Furthermore, the evidence of defendant's guilt is overwhelming. Itis therefore highly improbable that if these statements had been
excluded, a different verdict would have resulted.
Second, defendant contends the court erred in denying his
motion to dismiss the charges of second degree kidnapping. He
argues the State failed to present sufficient evidence of a
restraint or removal separate from that inherent in the offense of
robbery with a dangerous weapon.
The offense of kidnapping is established upon
proof of an unlawful, nonconsensual restraint,
confinement or removal of a person from one
place to another, for the purpose of: (1)
holding the person for ransom, as a hostage or
using them as a shield; (2) facilitating
flight from or the commission of any felony;
or (3) terrorizing or doing serious bodily
harm to the person.
State v. Smith, 160 N.C. App. 107, 119, 584 S.E.2d 830, 838 (2003).
If the restraint or removal is an inherent and inevitable element
of the other felony, such as robbery with a dangerous weapon, then
the defendant may not be convicted both of robbery with a dangerous
weapon and kidnapping. State v. Irwin, 304 N.C. 93, 102-03, 282
S.E.2d 439, 446 (1981). In determining whether the restraint or
removal is inherent in the robbery offense, courts have focused on
two factors: (1) whether the person was forcibly removed for any
other reason than commission of the robbery; or (2) whether the
restraint or removal exposed the person to a greater danger than
inherent in the other offense. State v. McNeil, 155 N.C. App. 540,
545-46, 574 S.E.2d 145, 148-49 (2002).
We have found three cases that are factually similar to the
case at bar. The first of the three is State v. Little, 133 N.C.App. 601, 515 S.E.2d 752 (1999), in which the defendant accosted
the victim after the victim had withdrawn money from an ATM, forced
the victim to withdraw more money from the ATM, took the money the
victim withdrew from the ATM, then forced the victim to get back
into his car and drive to a cul-de-sac where the defendant took the
victim's wallet. Id. at 606-07, 515 S.E.2d at 756. The defendant
unsuccessfully attempted to withdraw more money from the machine.
We held that the removal of the victim away from the teller machine
to the cul-de-sac, after the defendant had already taken the
victim's money, was not a restraint or removal integral to
commission of the robbery. Id. at 607, 515 S.E.2d at 756.
In State v. McNeil, 155 N.C. App. 540, 574 S.E.2d 145, the
defendant pointed a gun at an employee of a dry cleaning business
and forced the victim to walk to the rear of the building, where
the defendant ordered the victim to kneel and give defendant his
wallet. Id. at 541, 574 S.E.2d at 146. The defendant then, with
the gun placed to the victim's back, walked the victim to the front
of the store and ordered the victim to show him how to open the
cash register. Id. The victim complied and the defendant opened
the cash register. Id. After taking the money from the register,
the defendant placed the gun to the victim's back and forced him to
walk to the rear of the business. The defendant then fled. Id.
We held that the removal of the victim from the cash register to
the back of the store constituted additional restraint beyond that
necessary for facilitating flight. Id. at 547, 574 S.E.2d at 150. Finally, in State v. Burrell, 165 N.C. App. 134, 598 S.E.2d
246 (2004), appeal dismissed and disc. review denied, 359 N.C. 323,
611 S.E.2d 421 (2005), three men accosted the victim as he was
getting out of his vehicle. Id. at 136, 598 S.E.2d at 247. The
three men forced the victim back into his vehicle. Id. One
perpetrator drove the vehicle while one of his accomplices held a
gun to the victim's head and the second accomplice held the
victim's hands behind his back. Id. The perpetrators took the
victim's wallet, which contained bank cards, and drove to several
ATMs in unsuccessful attempts to withdraw money. Id. The
perpetrators ultimately pushed the victim out of the vehicle and
left him on the side of the road on Interstate 85. Id. at 137, 598
S.E.2d at 248. We held that the robbery was complete when the
perpetrators took control of the victim's vehicle and took his
wallet. Id. at 140, 598 S.E.2d at 249-50. We also held that the
victim was subjected to a greater amount of danger than that
inherent in the offense of armed robbery because he was held for
more than two hours, his arms were held behind his back, and a gun
was continually pointed at his head after he had been dispossessed
of his vehicle, cash, checks, and credit cards. Id. at 140, 598
S.E.2d at 250.
Here, defendant crouched in the back seat with S.F's five-
week-old baby as he directed her to drive to the ATM. S.F.
testified that as she drove, “all [she] could think of was, he's
sitting by my baby. He's sitting by my baby.” When she got out of
the vehicle to get money out of the ATM, defendant warned her thatif she did “anything stupid,” she knew what would happen to her
baby, who remained in the backseat of the vehicle with defendant.
After S.F. withdrew the money from the ATM, defendant directed S.F.
to drive on an unfamiliar road on the way back to her house. S.F.
attempted to persuade defendant to leave when they drove into the
yard, but defendant forced her to go back into the house with him
and defendant locked the door behind him. During all of this time
defendant was armed with a knife and a gun.
The foregoing evidence shows that S.F. was subjected to
restraint and greater danger beyond that inherent in the offense of
robbery with a dangerous weapon. Defendant persisted in
restraining S.F. after the robbery was completed. We thus conclude
the trial court did not err in denying defendant's motion to
dismiss the charges of second degree kidnapping.
We hold defendant received a fair trial, free of prejudicial
error.
No error.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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