Appeal by defendant from judgments entered 19 August 2005 by
Judge Forrest D. Bridges in Cleveland County Superior Court. Heard
in the Court of Appeals 21 September 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Karen E. Long, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
Defendant Christopher Oneal Brown appeals from his convictions
for first degree rape, first degree sexual offense, and second
degree kidnapping. On appeal, defendant primarily argues that (1)
we should overrule State v. Smith, 110 N.C. App. 119, 429 S.E.2d
425, aff'd per curiam, 335 N.C. 162, 435 S.E.2d 770 (1993), and
invalidate his sexual offense indictment, and (2) we should find
error in the trial court's jury instructions after revisiting State
v. Langford, 319 N.C. 340, 354 S.E.2d 523 (1987). Only the Supreme
Court may, however, reconsider Smith and Langford and,
consequently, we reject these arguments.
Defendant also contends that the trial court erred by failing
to grant his motion to dismiss each charge for insufficientevidence. Based upon our review of the record, however, we
conclude that there is sufficient evidence of every element of the
charges to survive defendant's motion to dismiss. Accordingly, we
find no error.
The State's evidence at trial tended to show the following
facts. Billie Jo Brown and defendant married in 2002, but
separated in May 2004. Their marriage had involved domestic
violence, and Ms. Brown ultimately obtained a domestic violence
protection order requiring defendant to stay away from her home.
On the evening of 19 June 2004, Ms. Brown had cooked dinner
for her children, her sister, her sister's children, and a friend,
Curtis McGuire, with whom Ms. Brown had once been romantically
involved. After dinner, defendant arrived at Ms. Brown's house and
told her that he was very angry over Mr. McGuire's presence.
Although defendant knew he was not supposed to be at Ms. Brown's
home, he told her that he needed to talk to her, grabbed her by the
arm, and instructed her to come outside. Defendant refused to let
Ms. Brown put on her shoes first.
Defendant told Ms. Brown that he was going to "get [her]" for
having Mr. McGuire at her home and ordered her to go to the "bottom
of the road." Ms. Brown testified that she complied because she
was scared and did not know what defendant was going to do. As
they walked down the road, defendant slapped Ms. Brown in the face
and told her he intended to kill her. After repeatedly telling Ms.
Brown that she was going to die, defendant hit her again. She felldown and began crying. Ms. Brown testified she believed
defendant's threats, both because of his tone and because "he had
some tool with him" that she had not seen earlier. Outside in the
dark, she could make out only that it was "black and long." When
defendant held the "tool" up, however, it looked to Ms. Brown to be
a "hatchet or some kind of wrench."
Defendant continued to hit Ms. Brown with his hands until they
reached the end of a dead end road, where he grabbed her by the
hair and commanded her to perform oral sex on him. After Ms. Brown
did so, defendant told her to remove her clothes and lie down.
Defendant then placed the "tool" on the ground, had vaginal
intercourse with Ms. Brown, and again ordered Ms. Brown to perform
oral sex on him. After she complied, defendant struck her and told
her to get on her knees. Defendant then had vaginal intercourse
with Ms. Brown from behind.
Following the sexual acts, defendant had Ms. Brown put her
clothes back on and walk back with him toward her home. When they
arrived, the residence was empty, and defendant asked her if she
was ready to die. Defendant gave Ms. Brown permission to call her
children while he looked for tape to wrap around the "tool." Ms.
Brown eventually located her children at her sister's house and
spoke briefly to her 12-year-old son, at which point defendant
grabbed the phone and began hitting Ms. Brown on the shoulders with
the "tool" that he had wrapped with tape and a shirt.
Ms. Brown's sister called the police, and a deputy sheriff
soon arrived at the home. When defendant ran into nearby bushes tohide, Ms. Brown ran to the sheriff's car and told the officer that
defendant had assaulted her. The officer stayed with Ms. Brown
until her sister arrived. Ms. Brown later went to a local hospital
where a rape kit was obtained.
On 9 August 2004, defendant was indicted for first degree
rape, first degree sexual offense, and first degree kidnapping.
The matter went to trial during the 8 August 2005 session of
Cleveland County Superior Court, and, on 19 August 2005, the jury
returned verdicts finding defendant guilty of first degree rape,
first degree sexual offense, and second degree kidnapping. The
trial court sentenced defendant to concurrent presumptive range
sentences of 325 to 399 months for first degree rape, 325 to 399
months for first degree sexual offense, and 40 to 57 months for
second degree kidnapping. Defendant timely appealed to this Court.
Defendant first argues that his indictment for first degree
sexual offense was fatally defective. The State used a short-form
indictment for this offense as allowed by N.C. Gen. Stat. § 15-
144.2(a) (2005). "Both our legislature and our courts have
endorsed the use of short-form indictments for rape and sex
offenses, even though such indictments do not specifically allege
each and every element." State v. Harris
, 140 N.C. App. 208, 215,
535 S.E.2d 614, 619, appeal dismissed and disc. review denied
N.C. 271, 546 S.E.2d 122 (2000).
With respect to a short-form first degree sexual offense
indictment, our legislature has provided: In . . . the body of the indictment, after
naming the person accused, the date of the
offense, the county in which the sex offense
was allegedly committed, and the averment
"with force and arms," as is now usual, it is
sufficient in describing a sex offense to
allege that the accused person unlawfully,
willfully, and feloniously did engage in a sex
offense with the victim, naming the victim, by
force and against the will of such victim and
concluding as is now required by law.
N.C. Gen. Stat. § 15-144.2(a). An indictment tracking this
statutory language is sufficient. See State v. Edwards
, 305 N.C.
378, 380, 289 S.E.2d 360, 362 (1982) (indictment for first degree
sexual offense was sufficient because it "complie[d] with the
Here, the indictment substantially tracks the statutory
language. Defendant, however, argues that the indictment's failure
to include the phrase "with force and arms," as specified by N.C.
Gen. Stat. § 15-144.2(a), renders the indictment inadequate. As
defendant acknowledges, however, this Court rejected this very
argument in Smith
, 110 N.C. App. at 130-31, 429 S.E.2d at 430-31.
N.C. Gen. Stat. § 15-155 (2005) ("No judgment upon any
indictment . . . shall be stayed or reversed . . . for omission .
. . of the words 'with force and arms,' . . . ."). Indeed, our
Supreme Court has upheld first degree sexual offense indictments
featuring nearly identical language to that used in defendant's
indictment. See State v. Kennedy
, 320 N.C. 20, 24, 357 S.E.2d 359,
Although defendant urges us to reconsider Smith
, as well as
other case law upholding short-form indictments in sexual offensecases, we are not at liberty to do so. See State v. Jones
N.C. 473, 487, 598 S.E.2d 125, 134 (2004) ("While we recognize that
a panel of the Court of Appeals may disagree with, or even find
error in, an opinion by a prior panel and may duly note its
disagreement or point out that error in its opinion, the panel is
bound by that prior decision until it is overturned by a higher
court."). See also State v. O'Hanlan
, 153 N.C. App. 546, 551, 570
S.E.2d 751, 755 (2002) (declining to reconsider prior case law
holding that short-form indictments for rape, sexual offense, and
kidnapping are constitutional), cert. denied
, 358 N.C. 158, 593
S.E.2d 397 (2004). This assignment of error is, therefore,
Defendant next contends that the trial court erred by denying
his motion to dismiss the charges of first degree rape, first
degree sexual offense, and second degree kidnapping. In ruling on
a defendant's motion to dismiss, the trial court must determine
whether the State presented substantial evidence (1) of each
essential element of the offense and (2) of the defendant's being
the perpetrator. State v. Robinson
, 355 N.C. 320, 336, 561 S.E.2d
245, 255, cert. denied
, 537 U.S. 1006, 154 L. Ed. 2d 404, 123 S.
Ct. 488 (2002). "Substantial evidence is such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion." State v. Brown
, 310 N.C. 563, 566, 313 S.E.2d 585,
587 (1984). When deciding a motion to dismiss, the trial court
must view all of the evidence presented "in the light mostfavorable to the State, giving the State the benefit of every
reasonable inference and resolving any contradictions in its
favor." State v. Rose
, 339 N.C. 172, 192, 451 S.E.2d 211, 223
(1994), cert. denied
, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct.
With respect to the kidnapping charge, "[s]econd-degree
kidnapping occurs when the victim is released in a safe place
without having been sexually assaulted or seriously injured and the
following elements, in relevant part, are met: (1) [unlawful]
confinement, restraint, or removal from one place to another; (2)
of a person; (3) without the person's consent; (4) for [one of the
purposes specified in N.C. Gen. Stat. § 14-39(a) (2005)]." State
, 167 N.C. App. 749, 752, 606 S.E.2d 425, 427 (2005) (third
alteration added) (internal quotation marks omitted); see also
Gen. Stat. § 14-39 (defining first and second degree kidnapping).
Defendant challenges only the State's evidence as to unlawful
confinement, restraint, or removal.
Although the indictment in the present case alleged kidnapping
based on confinement and restraint, the trial court instructed the
jury only on restraint. Consequently, the jury's verdict may be
upheld only upon a showing of sufficient evidence of restraint.
See State v. Smith
, 162 N.C. App. 46, 53, 589 S.E.2d 739, 744
(2004) (trial court erred when indictment alleged removal, but
instructions allowed conviction based on "confining, restraining,
or removing"). On the issue of restraint in the context of certain forcible
felonies, our Supreme Court has held:
It is self-evident that certain felonies
, forcible rape and armed robbery) cannot
be committed without some restraint of the
victim. We are of the opinion, and so hold,
that G.S. 14-39 was not intended by the
Legislature to make a restraint, which is an
inherent, inevitable feature of such other
felony, also kidnapping so as to permit the
conviction and punishment of the defendant for
both crimes. To hold otherwise would violate
the constitutional prohibition against double
jeopardy. Pursuant to the above mentioned
principle of statutory construction, we
construe the word "restrain," as used in G.S.
14-39, to connote a restraint separate and
apart from that which is inherent in the
commission of the other felony.
State v. Fulcher
, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978).
As a result, the question on appeal is "whether there was
substantial evidence that the defendant restrained . . . the
victim separate and apart from any restraint necessary to
accomplish the act of rape." State v. Mebane
, 106 N.C. App. 516,
532, 418 S.E.2d 245, 255, appeal dismissed and disc. review denied
332 N.C. 670, 424 S.E.2d 414 (1992).
"Restraint may be accomplished by restricting one's freedom of
movement by confinement, or by restricting by force, threat, fraud,
without confinement." State v. Raynor
, 128 N.C. App. 244, 250, 495
S.E.2d 176, 180 (1998). Additionally, because unlawful removal
necessarily involves unlawful restraint, the State may rely upon
evidence of removal even though it indicted only as to restraint.
at 249, 495 S.E.2d at 179. Here, the State presented evidence tending to show that after
Ms. Brown exited the home, defendant compelled her _ under threat
of death, with repeated battering, and while he was in possession
of a weapon _ to leave her home and accompany him to the end of a
road. This evidence constituted evidence of restraint beyond that
necessary to accomplish either first degree rape or first degree
sexual offense. Consequently, we conclude that the State presented
sufficient evidence from which a rational juror could conclude that
defendant, by use of force and threat, restrained Ms. Brown's
freedom of movement by removing her from her home and compelling
her to walk with him to the bottom of the road. See Harris
N.C. App. at 213, 535 S.E.2d at 618 (holding that State presented
sufficient evidence of restraint apart from that of rape or sexual
offense to support second degree kidnapping when defendant coerced
victim to go to a cemetery where the sexual assault occurred);
State v. Carrillo
, 115 N.C. App. 674, 678, 446 S.E.2d 379, 382
(1994) (sufficient evidence of restraint beyond that required for
assault with a deadly weapon when defendant dragged victim into a
room to electrocute him, and victim was afraid to leave because
defendant had a knife). This assignment of error is, therefore,
With respect to the charges of first degree rape and first
degree sexual offense, both require that a defendant engage in a
prohibited act "[w]ith another person by force and against the will
of the other person" and "[e]mploy or display a dangerous or
deadly weapon or an article which the other person reasonablybelieves to be a dangerous or deadly weapon." N.C. Gen. Stat. §
14-27.2(a)(2) (2005) (first degree rape); N.C. Gen. Stat. §
14-27.4(a)(2)(a) (2005) (first degree sexual offense). Defendant
argues, as to both charges, that the State failed to present
substantial evidence that defendant employed or displayed a
The State need not show that defendant used a dangerous weapon
in any particular manner, but, rather, merely that he "employed or
displayed [the weapon] in the course of [the sexual act] period
State v. Sturdivant
, 304 N.C. 293, 299, 283 S.E.2d 719, 724-25
(1981). Our Supreme Court has concluded that "a weapon has been
'employed' within the meaning of N.C.G.S. § 14-27.2 when the
defendant has it in his possession at the time of the rape."
, 319 N.C. at 344, 354 S.E.2d at 526. See also State v.
, 94 N.C. App. 261, 268, 380 S.E.2d 383, 387 (applying
's possession rule with respect to charge of first degree
sexual offense), disc. review denied
, 325 N.C. 435, 384 S.E.2d 545
In the present case, the State presented evidence showing that
defendant had a "hatchet or some kind of wrench" which he displayed
prior to his attack, and which he placed on the ground nearby while
sexually assaulting Ms. Brown. This is sufficient evidence from
which a reasonable juror could conclude that defendant had a
dangerous weapon in his possession, and, therefore, under Langford
that defendant employed or displayed a dangerous weapon during both
the rape and the sexual offense. See id.
(upholding convictionsfor first degree rape and first degree sexual offense when
perpetrator threatened victim with a knife and victim saw the knife
lying nearby during the attack). This assignment of error is,
Finally, defendant argues that the trial court erred when, in
response to a question from the jury, it provided additional
instructions as to the employment or display of a dangerous weapon
element of first degree rape and first degree sexual assault.
After some deliberation, the jury sent a note to the trial judge
asking the following question:
In the case of first degree rape or first
degree sexual assault, does having a ratchet
(or similar tool) in your possession
dangerous _ deadly weapon"?
Even if you never brandished against the
The trial court heard arguments from counsel and, relying on
, instructed the jury as follows:
With respect to the employment or the display
of an object, I instruct you that the law . .
. does not require a showing that a dangerous
or deadly weapon was used in a particular
manner in order to sustain a conviction . . .
. Instead, the law requires only a showing
that such a weapon was employed or displayed.
Further, such a weapon or object has been
employed, within the meaning of this law, when
the Defendant has it in his position [sic] at
the time of the alleged rape or the alleged
Defendant contends this instruction relieved the State of its
burden of proof by creating a "mandatory conclusive presumptionthat if the jury found the defendant possessed a weapon, it must
conclude the weapon was used or employed . . . ." In State v.
, 101 N.C. App. 593, 604, 401 S.E.2d 106, 112-13, appeal
dismissed and disc. review denied
, 329 N.C. 275, 407 S.E.2d 852
(1991), however, this Court, pointing to Langford
rejected the argument made here by defendant. As noted above,
did in fact conclude that "a weapon has been 'employed'
within the meaning of N.C.G.S. § 14-27.2 when the defendant has it
in his possession at the time of the rape," 319 N.C. at 344, 354
S.E.2d at 526, and this Court has extended this analysis to first
degree sexual offenses, Pruitt
, 94 N.C. App. at 268, 380 S.E.2d at
Defendant asks this Court to revisit the Supreme Court's
holding in Langford
and, on this basis, reverse his conviction. We
are, however, bound by Langford
. See Jones
, 358 N.C. at
487, 598 S.E.2d at 134. This final assignment of error is,
therefore, also overruled.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).
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