Appeal by defendant from judgments entered 5 May 2005 by Judge
James C. Spencer, Jr. in Wake County Superior Court. Heard in the
Court of Appeals 23 August 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and
Kirby H. Smith, III, for defendant-appellant.
Defendant Davon Jamar Anderson appeals from his convictions
for one count of assault with a deadly weapon with intent to kill
inflicting serious injury, one count of first degree burglary,
three counts of robbery with a dangerous weapon, and six counts of
first degree kidnapping. On appeal, defendant argues primarily
that the trial court erred by denying his motion to dismiss the
kidnapping charges for insufficiency of the evidence. Because we
conclude that the State presented sufficient evidence to permit a
jury to conclude that none of the victims was released by the
defendant in a safe place and that each victim was subject to an
act of confinement, restraint, or removal independent of that
inherent in armed robbery and burglary, we disagree. Since we have
found defendant's other assignments of error to be without merit,
we uphold his convictions and sentence.
Facts and Procedural History
The State's evidence tended to show the following facts.
Tamara Edwards lived in a rented house at 4613 Windmere Chase in
Raleigh with her twelve-year-old son, D.E.; her seven-year-old
daughter, C.E.; Edwards' friend, Donyelle Norris; and Norris' four-
year-old daughter, D.N. Edwards' boyfriend, Aaron Richards, also
lived there. At about 10:00 p.m. on the evening of 12 September
2004, the children were asleep in their bedrooms, Norris was in her
bedroom, and Edwards and Richards were in their bedroom. When the
doorbell rang, Richards went downstairs to answer the door. Through the door's window, he saw a person standing on the stoop
holding a pizza box. Although no one in the household had ordered
a pizza, Richards, assuming the pizza delivery man was at the wrong
address, opened the door so that he could give directions.
As soon as Richards opened the door, the man on the stoop
dropped the pizza box and entered the house. He was followed by
defendant, who was wearing a black mask and had been standing
unseen by the side of the house. Both intruders brandished guns
and demanded drugs, money, and valuables from Richards. When
Richards replied that he had nothing of value to give them,
defendant put his gun in Richards' back and directed him upstairs
to the bedroom he shared with Edwards. Defendant then took about
$30.00 out of Richards' wallet, which was sitting on the dresser.
Meanwhile, the other intruder, whose name was Antonio Teasley,
woke the sleeping children and assembled all the occupants of the
house except for Richards in Norris' bedroom. He then demanded
money from Edwards and Norris. When defendant brought Richards
down the hallway to Norris' bedroom, Richards claimed _ in an
attempt to draw defendant and Teasley away from the house _ that he
had money at another location. After conferring, the intruders
agreed that Teasley would go with Richards to get the money, while
defendant would stay at the house and guard the women and children.
After Richards and Teasley left, defendant began searching the
house while continuing to demand money from the women. When the
women insisted that they had none, defendant directed Edwards to
begin filling trash bags with valuables, including Edwards' purse
collection and a camcorder. He also took some jewelry from
Edwards. He then tied the women's hands behind their backs with
cord. Meanwhile, Teasley conducted Richards at gunpoint downstairs
and outside to the car in which Teasley and defendant had arrived.
Teasley directed Richards to the passenger side, while he got in
the driver's side. Teasley drove with the gun in his lap, while
Richards used his cell phone to call Kenneth Kirby, Edwards'
brother-in-law. He asked Kirby to "bring the money" and meet at a
Food Lion near Kirby's house. Teasley and Richards drove to the
Food Lion, and both men got out of the car to wait for Kirby. When
Kirby arrived, Richards and he were able to overpower Teasley and
take his gun. Kirby and Richards then forced Teasley into Kirby's
car, and the three men returned to 4613 Windmere Chase.
When they arrived, they parked around the corner so defendant
could not see that they had arrived in a different car. Richards
knocked on the front door of the house. Defendant put his gun in
Edwards' back and walked her down the stairs to answer the door.
When defendant opened the door, he asked Richards about the money.
Richards replied that Teasley was outside in the car, that he had
the money, and that he was "ready to go." Defendant held Edwards
and the gun with one hand and began trying to search Richards with
the other, but Richards lunged at him and grabbed at the hand that
held the gun. During the struggle, defendant shot Richards twice
in the chest, once in the back, and once in the arm.
Defendant left Richards lying near the front door and fetched
Norris from upstairs, leaving the children by themselves. He then
forced Norris and Edwards into the garage at gunpoint. As they
entered the garage, Edwards tripped and fell to the ground,
blacking out as she did so. Defendant's gun went off as Edwards
tripped, but the bullet lodged harmlessly in a car in the garage.
Believing, however, that Edwards had been shot, defendant andNorris went back to the front of the house. As he was bringing
Norris towards the front door, defendant heard Richards, who was
still conscious, calling the police on his cell phone. Defendant
shot his gun into the air two more times and then ran out the back
Defendant was later apprehended and charged with one count of
assault with a deadly weapon with intent to kill inflicting serious
injury, one count of first degree burglary, three counts of robbery
with a dangerous weapon, and six counts of first degree kidnapping.
Following a jury trial in May 2005, defendant was convicted on all
counts. After defendant stipulated that his prior record level was
III, the trial court imposed consecutive sentences as follows: 28
to 43 months on the assault conviction, 96 to 125 months on the
first degree burglary conviction, 96 to 125 months for the
consolidated robbery convictions, and 116 to 149 months for the
consolidated kidnapping convictions. He filed a timely appeal to
Motion to Dismiss
 Defendant argues on appeal that the trial court erred by
denying his motion to dismiss the charges against him for
insufficiency of the evidence. Although defendant assigned error
with respect to each of the charges brought, he confined the
argument in his brief to the first degree kidnapping charges. We,
accordingly, do not examine the trial court's denial of defendant's
motion to dismiss the other charges. N.C.R. App. P. 28(b)(6)
("Assignments of error not set out in the appellant's brief, or in
support of which no reason or argument is stated or authority
cited, will be taken as abandoned."). In ruling upon a motion to dismiss, the trial court must
determine if the State has presented substantial evidence of each
essential element of the offense. 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). "'Evidence is substantial if it is
relevant and adequate to convince a reasonable mind to accept a
(quoting State v. Parker
, 354 N.C. 268, 278, 553
S.E.2d 885, 894 (2001), cert. denied
, 535 U.S. 1114, 153 L. Ed. 2d
162, 122 S. Ct. 2332 (2002)). In considering the motion, the trial
court must view the evidence in the light most favorable to the
State, giving the State the benefit of every reasonable inference
to be drawn from the evidence, and resolving any contradictions in
favor of the State. Id.
, 561 S.E.2d at 256.
Under N.C. Gen. Stat. § 14-39(a) (2005), a defendant is guilty
of kidnapping if he "shall unlawfully confine, restrain, or remove
from one place to another, any other person 16 years of age or over
without the consent of such person, or any other person under the
age of 16 years without the consent of a parent," for one of four
specified purposes, including "(1) Holding such other person for a
ransom or as a hostage or using such other person as a shield; or
(2) Facilitating the commission of any felony . . .; or (3) Doing
serious bodily harm to or terrorizing the person . . . ." For the
defendant to be convicted of first degree kidnapping, the State
must also prove one of three additional elements: that the person
kidnapped (1) was not released in a safe place, (2) was seriously
injured, or (3) was sexually assaulted. N.C. Gen. Stat. §
14-39(b). In the absence of one of the elements set forth in N.C.
Gen. Stat. § 14-39(b), the defendant is guilty of second degree
Here, defendant argues that the State offered no evidence of
the elements listed in § 14-39(b). The State relied upon the first
element: the failure to release the victims in a safe place. This
Court has recently held that a "release" is more than the mere
"relinquishment of dominion or control over a person." State v.
, 177 N.C. App. 614, 625-26, 630 S.E.2d 234, 242, disc. review
, 360 N.C. 580, 636 S.E.2d 192-93 (2006). Rather, a
"'release' inherently contemplates an affirmative or willful action
on the part of a defendant." Id.
at 625-26, 630 S.E.2d at 242.
Court stated that the defendants did not affirmatively or
willfully release the victims when they bound the victims to chairs
in their own home, ransacked the house for valuables, re-checked
the bindings immediately before leaving, and threatened to return.
The Court reasoned that although "defendants may have physically
left the premises, . . . through their active intimidation, they
left the victims with a constructive presence." Id.
at 626, 630
S.E.2d at 242.
With respect to Edwards and Norris, we hold that the State's
evidence was sufficient to allow the jury to consider whether they
had been released in a safe place. With respect to the requirement
of an affirmative and willful "release" under Love
testified that after defendant fled, she was initially unsure as to
his whereabouts. The police also felt that the scene was still
unsafe when they arrived soon after Richards' phone call. Thus, it
is apparent that defendant's "constructive presence" lingered,
since the victims and, later, the police were uncertain as to
whether defendant had actually relinquished his victims and vacated
the premises. Id.
at 625-26, 630 S.E.2d at 242. The fact pattern
with respect to Edwards and Norris mirrors the fact pattern inLove
, where the victims were left bound in their home with
uncertainty as to the kidnappers' whereabouts. In such
circumstances, we believe that the facts, taken in the light most
favorable to the State, permit a reasonable inference that no
"release" took place.
With respect to the three children, again viewing the evidence
in the light most favorable to the State, we also hold that there
was sufficient evidence at trial to allow the jury to conclude that
defendant did not "affirmative[ly] and willful[ly]" release them.
at 626, 630 S.E.2d at 242. Instead, the State's evidence
tended to show that defendant simply left the children upstairs in
the same room where they were initially confined while he forced
their mothers downstairs one by one. The Court in Love
"an affirmative action other than the mere departing of a premise."
at 626, 630 S.E.2d at 242. A jury could have reasonably found
that defendant simply departed the upstairs and engaged in no other
affirmative action to release the children.
Finally, with respect to Richards, there was also sufficient
evidence from which the jury could conclude that defendant did not
"release" him. In fact, defendant merely entrusted Richards into
the care of Teasley, instructing Teasley to take Richards elsewhere
and force Richards to give him money. Moreover, Richards only
obtained his freedom from Teasley when Richards and Kirby
overwhelmed Teasley at the Food Lion. This Court has previously
held that a victim's overpowering of his kidnapper does not
constitute a release for purposes of first degree kidnapping.
State v. Raynor
, 128 N.C. App. 244, 251, 495 S.E.2d 176, 180 (1998)(victim overwhelmed defendant and his accomplice in victim's house,
and defendant fled; victim not released in a safe place).
(See footnote 1)
 Defendant also argues that the kidnapping charges should
not have been submitted to the jury because there was no evidence
of confinement, restraint, or removal beyond that inherent in the
crimes of burglary and armed robbery. 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);
see also State v. Weaver
, 123 N.C. App. 276, 281, 473 S.E.2d 362,
365 (holding that a kidnapping conviction violates double jeopardy
principles unless "'the victim is exposed to greater danger than
that inherent in the [separately punished crime] itself or
subjected to the kind of danger and abuse the kidnapping statute
was designed to prevent'" (quoting State v. Johnson
, 337 N.C. 212,
221, 446 S.E.2d 92, 98 (1994) (internal quotation marks omitted))),
disc. review denied and cert. denied
, 344 N.C. 636, 477 S.E.2d 53
(1996). In this case, we hold that the State presented sufficient
evidence to allow the jury to conclude that defendant committed
acts of confinement, removal, or restraint with respect to each
victim, separate and independent of his commission of burglary and
armed robbery. With respect to Edwards and Norris, defendant bound
he had finished forcing Edwards to load valuables into
the trash bags _ an independent act of restraint separate from the
armed robbery. Similarly, as to the three children, two of whom
were under the age of eight, defendant subjected them to danger and
abuse, as specified in Weaver
, by awaking them in the night,
confining them in a single room in the house, and brandishing a gun
in their presence. Such acts were manifestly unnecessary to the
completion of the burglary.
(See footnote 2)
Furthermore, defendant held Edwards,
Norris, and their children as hostages while he sent Teasley and
Richards after money, and he later utilized both Edwards and Norris
as human shields while negotiating with Richards. As we have
noted, hostage-taking and the use of human shields are abuses
specifically listed in the kidnapping statute, N.C. Gen. Stat. §
Finally, with respect to Richards, the State's evidence showed
that after defendant took Richards to his bedroom and stole the
money from Richards' wallet, defendant proceeded to force Richards
at gunpoint down the hallway to Norris' room where the rest of the
household was assembled. This Court has previously held that
taking a victim from one room to another room is an independent act
of removal and restraint, when, as here, "the rooms where the
victims were ordered to go did not contain . . . property to betaken." State v. Joyce
, 104 N.C. App. 558, 567, 410 S.E.2d 516,
521 (1991), cert. denied
, 331 N.C. 120, 414 S.E.2d 764 (1992).
In sum, we hold that the State presented sufficient evidence
to permit a jury to conclude that none of the victims was released
by defendant and that each victim was subject to an act of
confinement, restraint, or removal independent of that inherent in
armed robbery and burglary. Therefore, we conclude the trial court
did not err by denying defendant's motion to dismiss the kidnapping
Defendant also argues on appeal that the trial court committed
plain error (1) by allowing Edwards and Norris to testify as to
their emotional state as events transpired the night of the crime;
(2) by allowing a police officer to testify about statements made
to him by Richards during the investigation of the crime that
ultimately led to the identification and arrest of defendant; and
(3) by failing to properly instruct the jury on the elements of
kidnapping. This Court may reverse for plain error
"only in the exceptional case where, after
reviewing the entire record, it can be said
the claimed error is a 'fundamental
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 error] 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) (first
alteration in original) (quoting United States v. McCaskill
, 676F.2d 995, 1002 (4th Cir.), cert. denied
, 459 U.S. 1018, 74 L. Ed.
2d 513, 103 S. Ct. 381 (1982)).
A. Testimony from Edwards and Norris
 Defendant first contends that the trial court committed
plain error by permitting Edwards and Norris to testify that they
and the children were "upset," "emotional," "distress[ed]", and
"scared" while the crime was being committed. Defendant contends
that this evidence was irrelevant. Relevant evidence is "evidence
having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence." N.C.R. Evid.
We are not persuaded that the challenged evidence is
irrelevant. N.C. Gen. Stat. § 14-87(a) (2005) defines armed
robbery as occurring when "[a]ny person or persons who, having in
possession or with the use or threatened use of any firearms or
other dangerous weapon, implement or means, whereby the life of a
person is endangered or threatened, unlawfully takes . . . personal
property from another . . . ." Here, the testimony of Edwards and
Norris as to their fright suggests their lives were endangered and
threatened by defendant's actions. Indeed, our Supreme Court has
ruled that the endangering or threatening of human life is the
"gravamen" of the offense of armed robbery. State v. Beaty,
N.C. 491, 499, 293 S.E.2d 760, 766 (1982), overruled on other
grounds by State v. White
, 322 N.C. 506, 369 S.E.2d 813 (1988).
Because we believe defendant is mistaken as to the relevance of the
challenged testimony, we hold that the trial court did not commit
plain error by admitting it.
B. Detective Griffin's Testimony
 Defendant next assigns plain error to the trial court's
admission of statements from Detective F. Griffin, Jr. First,
defendant contends that Griffin's testimony that Richards told him
he suspected defendant was the masked man amounted to inadmissible
hearsay. Even assuming, without deciding, that this testimony
constituted hearsay, we are unpersuaded that the testimony amounts
to plain error in light of the fact that defendant's fingerprints
were found both at 4613 Windmere Chase and on the car in which
Teasley drove defendant to the Food Lion.
(See footnote 3)
Even if the statements
by Detective Griffin were excluded, the fingerprint evidence alone
is sufficient to allow a reasonable jury to identify defendant as
a perpetrator of the crimes in question. Therefore, we cannot say
that the admission of the statements resulted in a miscarriage of
justice or had a probable impact on the outcome of the trial. See
, 307 N.C. at 660, 300 S.E.2d at 378.
C. Jury Instructions
 Defendant next argues that the trial court committed plain
error because the jury instructions on kidnapping did not parallel
the language in the indictments. Each indictment in this case
alleged defendant kidnapped the victim by "confining and
removing" the victim (emphases added), whereas the
trial court instructed the jury that it could find defendant guilty
if it believed defendant "confined the person _ that is, imprisoned
him or her within a given area; restrained the person _ that is,
restricted his or her freedom of movement; or
removed a person fromone place to another." (Emphasis added.) Defendant assigns plain
error to the trial court's use of the disjunctive "or" in the jury
instructions rather than the conjunctive "and" used in the
This Court rejected an identical argument in State v.
, 137 N.C. App. 37, 48, 527 S.E.2d 61, 69, disc. review
denied in part and remanded in part
, 352 N.C. 680, 545 S.E.2d 723
(2000). In Lancaster
, the Court noted that an indictment alleging
all three kidnapping theories is sufficient to put a defendant on
notice that he will have to defend on the basis of all three. Id.
Therefore, the Court concluded, a jury instruction that allows
conviction upon any one of the three theories alleged in the
indictment cannot be erroneous. Id.
Since we find Lancaster
materially indistinguishable from the present case, this assignment
of error is overruled.
We note that defendant's reliance on State v. Dominie
N.C. App. 445, 518 S.E.2d 32 (1999), is misplaced. In Dominie
this Court granted defendant a new trial after the indictment
charged defendant only with "removing" the victim, but the trial
court instructed the jury that it could convict defendant if it
found he "restrained or removed" the victim. Id.
at 448, 518
S.E.2d at 34. Such a situation is altogether different from the
present case, in which all the theories upon which the jury was
instructed appear in the indictment.
Mention of Plea Bargain During Sentencing
 Defendant's final argument on appeal assigns error to the
sentencing phase of his trial, in which the prosecutor requested
eleven consecutive sentences for defendant. In the course of the
prosecutor's argument, he mentioned defendant's rejection of a pleabargain. We note that defendant did not object to this comment at
the time it was made and that plain error review is limited to
review of jury instructions and evidentiary matters. State v.
, 351 N.C. 562, 566, 528 S.E.2d 575, 578, cert. denied
U.S. 1041, 148 L. Ed. 2d 543, 121 S. Ct. 635 (2000).
Even assuming arguendo
that defendant's objection was properly
preserved for appellate purposes, we hold that any error that might
have resulted from the prosecutor's argument was harmless.
Defendant did not, in fact, receive the eleven consecutive
sentences that the prosecution requested. Rather, the trial judge
chose to consolidate the six kidnapping convictions and the three
armed robbery convictions for sentencing purposes. As the State
notes in its appellate brief, defendant actually received from the
trial court a lesser sentence than he would have received had he
accepted the prosecution's plea bargain _ a convincing indication
that defendant was not prejudiced by the prosecution's mention of
defendant's rejection of the plea bargain. Accordingly, we
overrule defendant's final assignment of error.
Judges CALABRIA and JACKSON concur.