State of North Carolina
v
.
Wake County
Nos. 04 CRS 25864, 26009
Kirk Allen Witham
Attorney General Roy Cooper, by Assistant Attorney General
K.D. Sturgis, for the State.
Poyner & Spruill, LLP, by Joseph E. Zeszotarski, Jr. for
defendant-appellant.
CALABRIA, Judge.
Kirk Allen Witham (“defendant”) appeals from judgments entered
upon jury verdicts finding him guilty of robbery with a dangerous
weapon, second-degree kidnapping, conspiracy to commit robbery with
a dangerous weapon, and first-degree burglary. We find no error in
part and remand in part.
The State presented evidence at trial that on 6 April 2004,
Lorenzo Rowe (“Rowe”) went to Yasha Buchler's (“the victim”)
apartment on Bridle Ridge Drive in Raleigh, North Carolina, at
approximately 11:00 p.m. At that time, the victim and Rowe
discussed a $50.00 debt that the victim thought Rowe owed him as a
result of an incident involving stolen money in January of 2004. Rowe told the victim he had the $50.00 to return to him. The
victim and Rowe talked and watched television. As Rowe left, he
stated he would return later that evening. The victim, however,
told Rowe to call before he returned.
Approximately 15 to 30 minutes later, Rowe called the victim
indicating his interest in returning. The victim told Rowe not to
return because he had to work in the morning. Subsequent to the
phone call, the victim heard a knock at his door. As the victim
unlocked the door, the defendant, wielding an automatic rifle,
forced the door open. The defendant entered the victim's apartment
wearing a bandana to cover his face and black gloves. He pointed
the gun at the victim and told him to go to the bathroom and lie
“face down with [your] hands over [your] head.” The victim
complied and the defendant then asked him for his wallet. The
victim told defendant his wallet was on the coffee table in another
room. Defendant retrieved the wallet and asked for the PIN number
to the victim's ATM card. Defendant communicated to the victim
that “his friend” had left with the ATM card and would return.
Defendant's “friend” was Rowe. The victim realized defendant was
not alone and further realized the man with the gun was the
defendant. In fact, the victim testified “I recognized [the
defendant's] voice.
(See footnote 1)
I could see his eyes. I could tell who it
was.” Defendant held the victim at gunpoint for approximately
half-an-hour in the bathroom. Further, defendant forced the victimto lay facing the sink, threatening to “beat [the victim] up ...
bad” if he attempted to turn toward the defendant.
Once Rowe returned, the defendant told the victim not to grab
any guns, look through any windows, or call the police. The victim
asked defendant to leave his wallet which Rowe did. Once Rowe and
the defendant left his apartment, the victim pressed Star 69 on his
telephone to retrieve the phone number Rowe called from his phone.
The victim then called the police, gave them the number, and told
them that he thought defendant and Rowe were both involved.
Rowe testified he and defendant were “doing” cocaine on the
evening of 6 April 2004. After they “ran out” of cocaine, “the
idea of robbing [the victim] came up ... in order to get more
drugs.” Their plan was to go to the victim's apartment, take his
ATM card, go to an ATM machine, and withdraw the victim's money.
Specifically, their plan involved defendant's use of a gun to get
the victim's ATM card and then Rowe driving to the ATM machine and
withdrawing the victim's money. Rowe testified he withdrew $500.00
from an ATM machine and then returned to the victim's apartment.
Rowe testified that prior to leaving the victim's apartment, he put
the victim's ATM card into the victim's wallet and left it on a
chair. Rowe testified that despite an earlier denial of
involvement, once detectives showed him a photograph of himself
withdrawing money from the ATM on the evening of 6 April 2004, he
admitted he and the defendant robbed the victim. On cross-
examination, Rowe testified that it was part of the plan to return
the ATM card to the victim. Lee Witham, defendant's brother,testified defendant had neither a southern accent nor spoke with a
lisp. Defendant did not testify.
On 2 March 2005, the jury found defendant guilty of robbery
with a firearm, second-degree kidnapping, conspiracy to commit
robbery with a firearm, and first-degree burglary. Defendant was
sentenced to the North Carolina Department of Correction to serve
a minimum of 103 months to a maximum of 133 months for robbery with
a dangerous weapon, second-degree kidnapping, and conspiracy to
commit robbery with a dangerous weapon and 103 months to 133 months
for first-degree burglary to run consecutive to the first sentence.
Defendant appeals.
I. Motions to Dismiss
Defendant argues that the trial court erred by not granting
his motion to dismiss the following charges: robbery with a
dangerous weapon; conspiracy to commit robbery with a dangerous
weapon; second-degree kidnapping; and first-degree burglary.
Defendant contends the evidence was insufficient as a matter of law
to support each of the charges.
It is well settled that upon a motion to dismiss in a criminal
action the evidence must be considered in the light most favorable
to the State and the State is entitled to every reasonable
inference therefrom. State v. Holton, 284 N.C. 391, 394, 200
S.E.2d 612, 614 (1973); State v. Witherspoon, 293 N.C. 321, 326,
237 S.E.2d 822, 826 (1977). Contradictions and discrepancies are
a matter for the jury to decide and do not require dismissal.
State v. Bolin, 281 N.C. 415, 424, 189 S.E.2d 235, 241 (1972). Thecourt's duty when considering a motion to dismiss is to determine
whether there is substantial evidence of each essential element of
the offense charged and that the defendant was the perpetrator.
State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982).
“Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” State v.
Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980) (citations
omitted). “If a jury could reasonably infer defendant's guilt when
the evidence is viewed in the light most favorable to the State,
then the motion must be denied.” State v. Hines, 166 N.C. App.
202, 204, 600 S.E.2d 891, 894 (2004).
A. Robbery with a Dangerous Weapon:
Defendant was convicted of robbery with a dangerous weapon in
violation of N.C. Gen. Stat. § 14-87 (2005). The elements of
robbery with a dangerous weapon are: “(1) an unlawful taking or an
attempt to take personal property from the person or in the
presence of another, (2) by use or threatened use of a firearm or
other dangerous weapon, (3) whereby the life of a person is
endangered or threatened.” State v. Call, 349 N.C. 382, 417, 508
S.E.2d 496, 518 (1998), cert. denied, 534 U.S. 1046, 151 L. Ed. 2d
548 (2001); see also N.C. Gen. Stat. § 14-87(a) (2005). Pursuant
to the first element, the taking or attempted taking must be with
felonious intent. State v. Richardson, 308 N.C. 470, 474, 302
S.E.2d 799, 802 (1983). Felonious intent is the intent “to deprive
the owner of his property permanently and to convert it to the use
of the taker.” State v. Lawrence, 262 N.C. 162, 168, 136 S.E.2d595, 599-600 (1964). “[A]n intent to deal with another's property
unlawfully in such a manner as to create an obviously unreasonable
risk of permanent deprivation, [is] all that is required to
constitute the animus furandi _ or intent to steal.” State v.
Hill, 139 N.C. App. 471, 484, 534 S.E.2d 606, 615 (2000) (citations
omitted) (emphasis added).
In the instant case, the State presented sufficient evidence
of robbery with a dangerous weapon. First, the defendant took the
victim's ATM card with felonious intent. Specifically, the
defendant took the victim's ATM card and PIN number at gunpoint,
while Rowe withdrew money from the victim's account. After being
held face down at gunpoint for nearly thirty minutes, the victim
had to ask the defendant to relinquish the ATM card. Therefore,
pursuant to Hill, supra, the defendant subjected the victim's ATM
card to an unreasonable risk of permanent deprivation. Next, we
note that the defendant failed to argue either the second or third
element of robbery with a dangerous weapon. Pursuant to N.C. R.
App. P. 28(b)(6) (2005), defendant abandoned these potential
contentions. Nevertheless, the State presented substantial
evidence of the remaining elements. Regarding the second element,
defendant used a firearm during the robbery. Rowe testified that
pursuant to the plan, defendant used a gun to break into the
victim's apartment and get the ATM card. Further, the victim
testified the defendant held him at gunpoint while Rowe went to the
ATM machine. Regarding the third element, defendant's use of the
gun endangered the victim's life. The victim testified thedefendant pointed a gun at him from the moment he forced his way
into the victim's apartment to when he and Rowe left nearly one
half hour later. Further, the victim testified the defendant
threatened to “beat him up ... bad” when he attempted to face the
defendant while being held at gunpoint in the bathroom. We hold
the State presented sufficient evidence to support the robbery with
a dangerous weapon charge and thus overrule this assignment of
error.
B. Conspiracy to Commit Robbery with a Dangerous Weapon:
“In order to prove a criminal conspiracy, the State must show
an agreement between two or more persons to do an unlawful act or
to do a lawful act in an unlawful way.” State v. Gray, 56 N.C.
App. 667, 672, 289 S.E.2d 894, 897 (1982). In the case sub judice,
the State had the burden to prove an agreement between Rowe and
defendant to rob the victim by use of a dangerous weapon in order
to prove a conspiracy to commit robbery with a dangerous weapon.
Rowe testified he and defendant came up with a plan to rob the
victim because they wanted money to buy more cocaine. The plan
involved going to the victim's apartment, using a gun, taking the
victim's ATM card and withdrawing money. This evidence clearly
demonstrated that defendant and Rowe had an agreement to do an
unlawful act. See Gray, supra. We hold sufficient evidence
supported the conspiracy to commit robbery with a dangerous weapon
charge and overrule this assignment of error.
C. Second-Degree Kidnapping: Defendant argues there was insufficient evidence to support
his conviction of second-degree kidnapping. Defendant contends the
restraint and confinement of the victim, a necessary and integral
part of the commission of the underlying felony, robbery with a
dangerous weapon, was merely a technical asportation. We agree.
“To convict defendant of second-degree kidnapping ..., the
State [i]s required to prove beyond a reasonable doubt defendant,
acting by himself or acting in concert, confined, restrained, or
removed the victims from one place to another for the purpose of
facilitating the commission of a felony.” State v. Ripley, 360
N.C. 333, 340, 626 S.E.2d 289, 293 (2006); see also N.C. Gen. Stat.
§ 14-39(a), (a)(2) (2005). Kidnapping is of the second-degree if
the victim was not assaulted and was released in a safe place. See
N.C. Gen. Stat. § 14-39(b) (2005). In determining whether a
kidnapping occurred, the relevant issue is whether the removal is
integral to the movement necessary to commit the underlying felony.
State v. Joyce, 104 N.C. App. 558, 566, 410 S.E.2d 516, 521 (1991).
Specifically,
in determining whether a defendant's
asportation of a victim during the commission
of a separate felony offense constitutes
kidnapping, [a trial court] must consider
whether the asportation was an inherent part
of the separate felony offense, that is,
whether the movement was “a mere technical
asportation.”
Ripley, 360 N.C. at 340, 626 S.E.2d at 293-94. The asportation of
the victim must be “a separate act independent of the originally
committed criminal act[.]” Id. 626 S.E.2d at 294. In Ripley, our
Supreme Court further stated “[t]he moment defendant's accomplicedrew his firearm, the robbery with a dangerous weapon had begun”
and thus “[t]he subsequent asportation of the victims was a mere
technical asportation that was an inherent part of the robbery
defendant and his accomplices were engaged in.” Id. (citation and
internal quotation marks omitted) (emphasis added).
Recently, this Court, interpreting Ripley, supra, determined
there was insufficient evidence to withstand a motion to dismiss
first-degree kidnapping. State v. Cartwright, __ N.C. App. __, 629
S.E.2d 318 (2006). In support of this conclusion, this Court
stated “[t]he victim's movement down the hallway is a mere
[technical] asportation because the armed robbery began when
defendant showed the knife to the victim and demanded money[.]”
Id. __ N.C. App. at __, 629 S.E.2d at 323. Pursuant to both Ripley
and Cartwright, supra, robbery with a dangerous weapon begins once
the weapon is brandished and the subsequent movement of the victim
is a mere technical asportation. “[A]n asportation which is an
inherent and integral part of some crime for which defendant has
been convicted other than the kidnapping will not support a
separate conviction for kidnapping.” State v. Tucker, 317 N.C.
532, 535, 346 S.E.2d 417, 419 (1986).
In the instant case, the victim's movement at gunpoint from
his door to his bathroom constitutes a technical asportation. As
stated by our Supreme Court in Ripley, supra, once the firearm was
drawn, robbery with a dangerous weapon began. Consequently and
pursuant to Tucker, supra, the subsequent movement of the victim
was an inherent and integral part of the commission of a crime,robbery with a dangerous weapon, distinct from kidnapping.
Therefore, a required element of kidnapping, that defendant
“confined, restrained, or removed the victims,” Ripley, supra, is
absent. Thus, because the State presented insufficient evidence of
second-degree kidnapping, we vacate defendant's conviction of that
charge. Further, we remand to the trial court for resentencing
according to defendant's vacated second-degree kidnapping charge.
D. First-Degree Burglary:
“The elements of first-degree burglary are: (i) the breaking
(ii) and entering (iii) in the nighttime (iv) into the dwelling
house or sleeping apartment (v) of another (vi) which is actually
occupied at the time of the offense (vii) with intent to commit a
felony therein.” State v. Singletary, 344 N.C. 95, 101, 472 S.E.2d
895, 899 (1996); see also N.C. Gen. Stat. § 14-51 (2005).
Defendant argues there was insufficient evidence to support a
first-degree burglary charge because there was insufficient
evidence of robbery with a dangerous weapon. However, as discussed
supra, the State presented sufficient evidence of robbery with a
dangerous weapon and thus, defendant's contention is without merit.
Furthermore, the State presented sufficient evidence the defendant
entered into the victim's apartment at night by using a gun while
the victim was present with the intent to rob the victim.
Specifically, the victim testified that sometime after 12:30 a.m.
on 7 April 2006, the defendant forced his way into the victim's
apartment by using a gun. Defendant then took the victim's ATM
card and PIN number and gave it to Rowe to withdraw money. Further, both the defendant and Rowe concocted the plan to rob the
victim prior to its commission. The State presented sufficient
evidence to sustain the first-degree burglary charge and thus we
overrule this assignment of error.
Defendant did not submit arguments as to assignments of error
three, six, eight, ten, and eleven. Therefore, these arguments are
deemed abandoned pursuant to N.C. R. App. P. 28(b)(6)(2005).
No error in part; vacated and remanded in part.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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