STATE OF NORTH CAROLINA
v
.
Wake County
No. 04 CRS 80357-58
05 CRS 1392-98
TONY HARRELL JOHNSON
Attorney General Roy Cooper, by Assistant Attorney General Q.
Shanté Martin, for the State.
Haral E. Carlin, for defendant.
STEELMAN, Judge.
Evidence presented at trial tended to show the following:
Defendant's brother, Timothy Johnson (Johnson), was a drug dealer.
In August of 2004, drugs, cash and a gun were stolen from
Johnson's apartment. Johnson suspected Jeremy Ellis (Ellis), and
enlisted the help of defendant and others in an attempt to recover
his stolen property. Defendant and Rachel French (French) went to
Ellis' house in an attempt to ascertain whether he had Johnson's
cocaine. French informed Ellis she wished to buy some cocaine, and
when Ellis produced a sample, defendant tasted it. After leaving
the house, defendant told French that the cocaine was Johnson's,
and that they needed to do something to retrieve it. Defendant,Christopher Edge (Edge), Justin McCarty (McCarty), Michael Poole
(Poole), Napolean Sanders (Sanders) and Nathan Archer (Archer) all
agreed to assist Johnson in attempting to retrieve his property
from Ellis.
On 23 August 2004, just after midnight, the men went to Ellis'
house. McCarty, Edge and Poole had guns. Defendant carried a
steak knife. The others carried a baseball bat, a fire poker and
a golf club. The assailants were admitted through the front door
by Jamie Morgan (Morgan). McCarty drew his weapon on Morgan, and
forced him to the floor where he handcuffed him. Three other
victims, Ellis, Ashley Case and Lucy Valazquez, were rounded up
from within the house and brought to the living area while the
house was searched for drugs, cash and guns. After searching the
house and taking cash, cocaine, guns, ammunition and X-box video
games, the assailants used duct tape to bind the victims' hands and
feet. The assailants also attempted to limit communication by
disabling the land-line phones in the house, and taking all the
cell phones and sets of car keys they could find. The victims were
left bound in the house. McCarty returned briefly after leaving in
order to retrieve his handcuffs from Morgan's wrists and replace
them with duct tape. The victims eventually freed themselves from
the duct tape, and called police on a cell phone the assailants had
missed.
McCarty pled guilty to single counts of first-degree burglary
and robbery with a dangerous weapon, and testified for the State
against defendant. He received a mitigated range sentence of 48 to67 months imprisonment. Archer and Poole both pled to single
counts of first-degree burglary and robbery with a dangerous
weapon, and also testified for the State. These counts were
consolidated, and they were sentenced in the mitigated range,
Archer receiving 61 to 83 months and Poole 38 to 55 months.
Johnson pled to single counts of first-degree burglary and robbery
with a dangerous weapon, and was given consecutive sentences in the
presumptive range totaling 122 to 166 months. Edge and Sanders
also pled guilty and testified for the State, but the record does
not reveal the sentences they received. Defendant elected to go to
trial, was found guilty on all charges (first-degree burglary, four
counts of robbery with a dangerous weapon, and four counts of
first-degree kidnapping), and was sentenced to an active term of
192 to 257 months imprisonment. From this judgment, defendant
appeals. For the reasons set forth below, we hold that defendant
received a fair trial free from error.
In defendant's first and second arguments, he contends the
trial court erred by penalizing him for not pleading guilty, and by
sentencing him disproportionately to his co-defendants. We
disagree.
A sentence within statutory limits is
“presumed to be regular.” Where the record,
however, reveals the trial court considered an
improper matter in determining the severity of
the sentence, the presumption of regularity is
overcome. It is improper for the trial court,
in sentencing a defendant, to consider the
defendant's decision to insist on a jury
trial.
State v. Peterson, 154 N.C. App. 515, 517, 571 S.E.2d 883, 885
(2002). A jury found Defendant guilty of first-degree burglary,
four counts of robbery with a dangerous weapon, and four counts of
first-degree kidnapping. Defendant was level I for felony
sentencing. N.C. Gen. Stat. § 15A-1340.14. The trial court
consolidated the four counts of robbery with a dangerous weapon,
consolidated the four counts of first-degree kidnapping, then
sentenced defendant in the presumptive range for all the offenses.
The sentences are to run consecutively, and constitute a total
active sentence of 192 to 257 months imprisonment. The trial court
could have, in its discretion, sentenced defendant at the top of
the presumptive range, and run all his sentences consecutively.
This would have resulted in an active sentence of 612 to 818
months.
Defendant complains not that his sentence is unfair on its
face, but that it is unfair in light of the sentences obtained by
his co-defendants. Defendant argues that this somehow indicates
that he was punished excessively for exercising his constitutional
right to a jury trial instead of accepting the plea agreement
offered by the State, as did his co-defendants. Defendant is
mistaken. Defendant was sentenced in the presumptive range for all
the crimes for which he was convicted, and six of the nine crimes
for which he was convicted are not reflected in his active
sentences because the trial court, in its discretion elected to
consolidate a number of the sentences. Defendant received a
sentence appropriate for his crimes. The record is completelydevoid of any evidence that the trial court considered any improper
matter when imposing the sentences. Defendant further argues that
his sentences were disproportionate to those given to his co-
defendants. There is no requirement that defendant's sentences,
which were not obtained through a plea agreement, be proportional
to his co-defendants' sentences.
See State v. Parker, 137 N.C.
App. 590, 604, 530 S.E.2d 297, 306 (2000).
These arguments are
without merit.
In defendant's third argument, he contends that the trial
court erred in denying his motion to dismiss the charges of first-
degree kidnapping at the close of State's evidence. We disagree.
“Upon defendant's motion for dismissal, the question for the
[trial court] is whether there is substantial evidence (1) of each
essential element of the offense charged, or of a lesser offense
included therein, and (2) of defendant's being the perpetrator of
such offense. If so, the motion is properly denied.” State v.
Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)(citations
omitted). Substantial evidence is relevant evidence that a
reasonable person would find sufficient to support a conclusion.
State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355
(1987)(citation omitted). When reviewing a motion to dismiss based
on insufficiency of the evidence, this Court must
view the evidence in the light most favorable
to the State, giving the State the benefit of
all reasonable inferences. Contradictions and
discrepancies do not warrant dismissal of the
case but are for the jury to resolve. . . .
Once the court decides that a reasonable
inference of defendant's guilt may be drawn
from the circumstances, then “'it is for thejury to decide whether the facts, taken singly
or in combination, satisfy [it] beyond a
reasonable doubt that the defendant is
actually guilty.'”
State v. Barnes, 334 N.C. 67, 75-6, 430 S.E.2d 914, 918-19
(1993)(citations omitted)(emphasis removed). “In addition, the
defendant's evidence should be disregarded unless it is favorable
to the State or does not conflict with the State's evidence.” State
v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 456 (2000)(citation
omitted), cert. denied, Fritsch v. North Carolina, 531 U.S. 890,
148 L. Ed. 2d 150 (2000).
Under N.C.G.S. § 14-39, a defendant commits
the offense of kidnapping if he: (1) confines,
restrains, or removes from one place to
another; (2) a person; (3) without the
person's consent; (4) for the purpose of
facilitating the commission of a felony, doing
serious bodily harm to the person, or
terrorizing the person. If the defendant does
not release the victim in a safe place, or if
he seriously injures the victim, he is guilty
of kidnapping in the first degree.
State v. Mann, 355 N.C. 294, 302, 560 S.E.2d 776, 782 (2002).
In order to support a conviction of both kidnapping and armed
robbery, the confinement, restraint or removal indicated in element
(1) for kidnapping must exceed that inherent in the commission of
the armed robbery. State v. Beatty, 347 N.C. 555, 558-59, 495
S.E.2d 367, 369-70 (1998); State v. Irwin, 304 N.C. 93, 103, 282
S.E.2d 439, 446 (1981). Defendant argues that the evidence in the
instant case does not support confinement, restraint or removal
beyond that inherent in the commission of the armed robbery.
Defendant thus argues that the evidence does not support hiskidnapping convictions in addition to those for armed robbery.
“'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 armed robbery itself.”'”
Beatty, 347 N.C. at 559, 495 S.E.2d at 369.
In the instant case, defendant and his accomplices subdued the
victims by brandishing guns, a knife, and other weapons. They then
bound the victims' hands and feet with duct tape. Our Supreme
Court has held on similar facts that when victims are being held at
gunpoint, binding the victims constitutes restraint beyond that
inherent in an armed robbery; exposes the victims to greater
danger; and thus permits a defendant to be convicted of both armed
robbery and kidnapping. Id., 495 S.E.2d at 370. The evidence at
trial was sufficient to survive defendant's motion to dismiss for
this issue.
Defendant further argues that there was insufficient evidence
to elevate the kidnapping charge from second-degree to first-degree
because the victims were released in a safe place. The evidence is
uncontroverted that the defendant and his accomplices left the
victims bound hand and foot with duct tape. In State v. Love, __
N.C. App. __, __ S.E.2d __, 2006 N.C. App. LEXIS 1189 (Filed 6 June
2006), defendants left their victims bound in their own home
following a breaking and entering and robbery with a dangerous
weapon. On appeal, defendants argued that because the victims were
left bound in their own home, this constituted a “release” in asafe place, and the trial court erred in failing to instruct the
jury on second-degree kidnapping in addition to its instruction on
first-degree kidnapping. This Court rejected the defendants'
argument, stating: “An instruction on the lesser included offense
of second-degree kidnapping certainly requires an affirmative
action other than the mere departing of a [premises].” Id. at __,
__ S.E.2d at __, 2006 N.C. App. LEXIS 1189, 19-20. We hold that
the victims in the instant case were never released for the
purposes of N.C. Gen. Stat. § 14-39. Id. The evidence at trial was
sufficient to withstand defendant's motion to dismiss the charge of
first-degree kidnapping. This argument is without merit.
Because defendant has not argued his other assignment of error
in his brief, it is deemed abandoned. N.C. R. App. P. Rule
28(b)(6) (2005).
NO ERROR.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).
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