An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1350


Filed: 18 July 2006

State of North Carolina

    v .                         Wake County
                                Nos. 04 CRS 25864, 26009
Kirk Allen Witham

    Appeal by defendant from judgments entered 2 March 2005 by Judge Steven A. Balog in Wake County Superior Court. Heard in the Court of Appeals 10 May 2006.

    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).

Footnote: 1
     The victim testified under cross-examination that he told the police the defendant had a southern accent and spoke with a lisp.

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