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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. COURTNEY SEMAJ WADE,
Filed: 02 January 2007
1. Sentencing_prior record level--use of worksheet_stipulation
The trial court did not err in determining defendant's prior record level from the State's
sentencing worksheet where defense counsel immediately began describing mitigating factors
without objecting to any of the convictions on the worksheet and thus stipulated to those
2. Criminal Law_fingerprint_impression during crime
The trial court did not err by denying defendant's motion to dismiss charges of assault,
safecracking, robbery and first-degree burglary where the State's only evidence linking defendant
to the crimes was a fingerprint; defendant stated to a detective that he had never been to
defendant's house; the victim testified that he was the only person with a key to the closet where
the fingerprint was found; and the victim testified that the robbers broke into the closet.
3. Kidnapping_restraint and removal_incident to other crimes
The trial court erred by denying a motion to dismiss a kidnapping charge where robbery
and assault were also charged, and the confinement, restraint or removal were part of those
Appeal by defendant from judgment entered 1 July 2005 by Judge
Henry E. Frye, Jr. in Moore County Superior Court. Heard in the
Court of Appeals 12 October 2006.
Attorney General Roy Cooper, by Melissa L. Trippe, Special
Deputy Attorney General, for the State.
Haral E. Carlin for defendant-appellant.
Courtney Semaj Wade (defendant) presents the following
issues on appeal: (1) whether the trial court properly determined
his prior record level; (2) whether the trial court erroneously
denied defendant's motion to dismiss the charges of assault with a
deadly weapon with intent to kill inflicting serious injury,safecracking, robbery with a dangerous weapon, and first degree
burglary at the close of the State's evidence and at the close of
all the evidence; and (3) whether the trial court erroneously
denied defendant's motion to dismiss the charge of second degree
kidnapping at the close of the State's evidence and at the close of
all the evidence. For the reasons set forth herein, we vacate in
part and find no error in part.
Evidence presented at trial tended to show that James Edward
Parker, Jr. (Parker), moved to Southern Pines in September of
2001 after inheriting a house from his grandmother. Parker's uncle
had previously lived in the house. Parker was renovating the
house. His son was handling the renovations, and placed a safe in
the bathroom closet to keep cash for making payments to contractors
working on the house. Parker testified that $10,000.00 in cash was
in the safe on 30 November 2003.
Several days prior to 30 November 2003, Parker noticed an
unfamiliar female walking on his property. He invited her into his
house and offered her a drink. While she was in the house she went
into the bathroom. Parker gave her $30.00 when she said she needed
money for her daughter.
On the night of 30 November 2003 two intruders entered the
house of Parker. Parker was awakened by a noise in the house. He
found two males in his living room. They began punching him,
striking him with a gun, and asking him where the money was. The
intruders stated they heard that there was a safe in the house.
Parker told the intruders that the safe was located in the bathroombut that he did not have a key to the safe. The intruders
proceeded to the bathroom but had difficulty in opening the safe.
One of the intruders again hit Parker and attempted to drag him
through the living room while the other tried to open the safe.
After kicking the intruder, Parker was able to escape, and run to
his neighbor's house for help. Parker did not recognize the
intruders or get a good look at their faces.
Marvin Wright (Wright), a detective with the Southern Pines
Police Department, responded to Parker's house. In canvassing the
house for evidence, Wright noticed a safe in the bathroom closet
which had been broken into. There were no legible fingerprints on
the safe. In the same closet above the safe was a box containing
a microscope. Two latent fingerprints were discovered on the
microscope box. These were subsequently identified by Kathleen
Farrell, a forensic fingerprint examiner with the Fayetteville
Police Department, to be those of defendant.
On 9 December 2003, a search warrant was executed for the
house of Tim and Rasheema Wade Kelly, who were relatives of
defendant. A handgun, a magazine with nine rounds, $1800.00 in
$100 bills, and a tire iron were found on the premises. A blood
and DNA analysis of the handgun was performed by Special Agent
Jennifer Elwell. The DNA on the handgun matched that of Parker.
Defendant was arrested on 12 December 2003 with five $100 bills in
his possession. A former girlfriend of defendant provided alibi testimony for
defendant at trial. She testified that they were in Fayetteville,
North Carolina, on the evening of 30 November 2003.
The jury returned verdicts of guilty of assault with a deadly
weapon inflicting serious injury, first-degree kidnapping, first-
degree burglary, robbery with a dangerous weapon, and safecracking.
The trial court arrested judgment in part reducing the charge of
first-degree kidnapping to second-degree kidnapping because
defendant was also convicted and sentenced on the assault charge.
In four separate judgments defendant was given consecutive active
sentences totaling 208-288 months imprisonment. From these
judgments, defendant appeals.
Prior Record Level
 In his first argument, defendant contends that the trial
court erred in determining defendant's prior convictions and prior
record level. We disagree.
Defendant argues that the State failed to meet the
requirements of N.C. Gen. Stat. § 15A-1340.14(f) to prove a prior
conviction. Prior convictions can be proved by:
(1) Stipulation of the parties.
(2) An original or copy of the court record
of the prior conviction.
(3) A copy of records maintained by the
Division of Criminal Information, the
Division of Motor Vehicles, or of the
Administrative Office of the Courts.
(4) Any other method found by the court to be
N.C. Gen. Stat. § 15A-1340.14(f) (2005). The State bears the
burden of proving that a prior conviction exists and that thedefendant is the same person as the offender in the prior
conviction. State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d
738, 742 (2002). Standing alone, a sentencing worksheet prepared
by the State listing a defendant's prior convictions is
insufficient proof of prior convictions. Id. A stipulation does
not require an affirmative statement and silence may be deemed
assent in some circumstances, particularly if the defendant had an
opportunity to object and failed to do so. State v. Alexander, 359
N.C. 824, 828-29, 616 S.E.2d 914, 917-18 (2005).
During sentencing, the following colloquy occurred:
THE COURT: Are you ready to proceed with
sentencing, Mr. D. A.?
[PROSECUTOR]: Yes, Your Honor, the State is
THE COURT: All right. Are you ready to
proceed with sentencing, Mr. Donadio [defense
MR. DONADIO: Yes, Your Honor.
THE COURT: All right.
[PROSECUTOR]: May I approach, Your Honor?
THE COURT: Yes, sir.
So the State contends his prior record level
will be II?
[PROSECUTOR]: That's correct, Your Honor.
THE COURT: All right. Mr. Donadio, I'll hear
from you on sentencing, sir.
MR. DONADIO: Your Honor, Courtney is here this
week supported by various members of his
extended family. He has no prior conviction
approaching this type of incident. He is a
young man. He still has a lot maybe to learn
and a lot that he can accomplish, and I would
ask you to consolidate where appropriate andgive him the benefit of a second chance at
THE COURT: All right. So you would contend at
least one mitigating factor; he has a support
system in the community?
Because a sentencing worksheet was the only proof submitted to
the trial court, we look to the dialogue between counsel and the
trial court to determine whether defendant stipulated to the prior
convictions which raised his prior record level to II. State v.
Cromartie, 177 N.C. App. 73, 80, 627 S.E.2d 677, 682 (2006). In
the instant case, defendant had an opportunity to object and
instead of doing so, began describing mitigating factors to the
trial court. At no time did defendant object to any of the
convictions on the worksheet. See Alexander, 359 N.C. at 830, 616
S.E.2d at 918. We hold that, under the circumstances, this
constituted stipulation to defendant's prior convictions. This
assignment of error is without merit.
Denial of Motion to Dismiss Charges Other than Kidnapping
 In his second argument, defendant contends that the trial
court erred in denying his motion to dismiss the charges of assault
with a deadly weapon with intent to kill inflicting serious injury,
safecracking, robbery with a dangerous weapon, and first degree
burglary for insufficient evidence at the close of the State's
evidence and at the close of all the evidence. We disagree.
When considering a motion to dismiss, the trial court must
determine whether there is sufficient evidence of each essential
element of the offenses charged or lesser included offenses, and
whether the defendant was in fact the perpetrator. State v.Mercer, 317 N.C. 87, 96-97, 343 S.E.2d 885, 890-91 (1986). If
there is sufficient evidence to submit the case to the jury, the
motion to dismiss must be denied. Id.
Circumstantial evidence, if sufficient to draw a reasonable
inference of the defendant's guilt, should be submitted to the jury
for determination of actual guilt. State v. Cutler, 271 N.C. 379,
383, 156 S.E.2d 679, 682 (1967). Fingerprint evidence, if the only
evidence circumstantial or otherwise tending to prove the defendant
was the perpetrator of the crime charged, is insufficient to
survive a motion to dismiss unless the jury can reasonably infer
that the fingerprints could only have been impressed at the time of
the crime. State v. Irick, 291 N.C. 480, 491-92, 231 S.E.2d 833,
841 (1977). Statements by the defendant that he had never been at
the crime scene are sufficient to show that a fingerprint lifted
from the premises could only have been impressed at the time of the
crime. See State v. Miller, 289 N.C. 1, 5, 220 S.E.2d 572, 575
In the instant case, the evidence before the trial court was
sufficient to submit the case to the jury. The State's only
evidence linking defendant to the crimes charged was a latent
fingerprint on a microscope box that was kept in the same bathroom
closet as the safe. The fingerprint was identified by an expert to
be defendant's. Defendant stated to the detective processing him
upon arrest that he had never been to the victim's house.
Defendant did not object to the admission of this evidence at trial
and has not assigned plain error on appeal. In addition, Parkertestified that he was the only person who had a key to the door of
the bathroom closet, where the safe and microscope box were kept.
Parker further testified that the robbers broke into the bathroom
closet. We hold that the trial court did not err in denying
defendant's motion to dismiss these charges. This argument is
Denial of Motion to Dismiss Kidnapping Charge
 In his third argument, defendant contends that the trial
court erred in denying his motion to dismiss the kidnapping charge
at the close of the State's evidence and at the close of all the
evidence because the State presented insufficient evidence of
confinement, restraint, or removal separate from that inherent in
the crime of robbery with a dangerous weapon. We agree.
Our standard of review is the same as that for the previously
discussed motion to dismiss.
A defendant is guilty of kidnapping if he unlawfully confines,
restrains, or removes an individual from one place to another
without their consent if done for the purpose of facilitating the
commission of a felony. N.C. Gen. Stat. § 14-39(a)(2) (2005). Our
case law requires confinement, restraint, or removal separate and
apart from that which is an inherent, inevitable part of the
commission of another felony. State v. Irwin
, 304 N.C. 93, 103,
282 S.E.2d 439, 446 (1981). To permit separate and additional
punishment where there has been only a technical asportation,
inherent in the other offense perpetrated, would violate adefendant's constitutional protection against double jeopardy. Id
In the instant case, due to the severe beating administered to
Parker by the robbers, his testimony of exactly what occurred and
the temporal sequence of events is far from clear. Taken in the
light most favorable to the State, it appears that the taller
robber (defendant) initially grabbed Parker. The other robber
struck Parker with his fists. Parker was subsequently struck with
a pistol, sank to the ground, and was then kicked. During the
beating, the robbers repeatedly asked, Where is the money at?
They also asked about the location of the safe:
Q: At some point, Mr. Parker, did you tell
them where the safe was?
A: Yes. I had to because they started
dragging me towards the bathroom and I
started feeling even more closed in, and
all the while they were still beating me
in the head and in the face with the gun.
Parker testified on several occasions that the robbers were
starting to drag him. Based upon this testimony, Parker would
only have been moved for a very short distance. At some point,
defendant went to the bathroom, looking for the safe, leaving
Parker with the other robber. This robber grabbed Parker under
both arms, then grabbed him by the legs, removing one of his socks.
When the robber was grabbing Parker's legs, Parker kicked him and
used the opportunity to effect his escape. Parker thought that the
robber may have been preparing to tie him up, but there was no
testimony that the robber attempted to tie him up or actually did
tie him up. The trial court charged the jury that any confinement,
restraint, or removal had to be a separate act independent of and
apart from robbery with a dangerous weapon or assault with a deadly
weapon inflicting serious injury.
The State argues that the facts before us are similar to those
in State v. Raynor
, 128 N.C. App. 244, 495 S.E.2d 176 (1998), an
armed robbery case in which this Court held that the evidence
supported a separate conviction for kidnapping. We disagree. In
, the victim was removed from the bedroom, where the robbery
took place, to the kitchen, for purposes of tying the victim up.
. 128 N.C. App. 247, 495 S.E.2d 177. The facts in the instant
case are distinguishable from those in Raynor
. Parker was not
removed from one room to another nor was there any evidence of
binding. These facts are more similar to State v. Ross
, 133 N.C.
App. 310, 315, 515 S.E.2d 252, 256 (1999), where this Court vacated
the defendant's second-degree kidnapping charge because the victim
was not exposed to a greater danger than that inherent in the armed
robbery. In Ross
, the defendant and his accomplices took the
victim to his bedroom looking for property to steal. Because the
victim was taken to his bedroom as part of the armed robbery, he
was not exposed to a greater danger than that inherent in the armed
This is a peculiar case, in that defendant was charged not
just with robbery with a dangerous weapon but also with assault.
The trial court correctly charged the jury that the confinement,
restraint, or removal had to be separate and apart from thatinherent in the commission of the other two offenses. Any
confinement and restraint was inherent in the assault of Parker.
The removal was inherent in the robbery with a dangerous weapon,
based upon Parker's testimony that the robbers were dragging him
toward the location of the safe. While the acts of defendant and
his confederate were vile and reprehensible, we are unable to
discern how any confinement, restraint, or removal of Parker was
not an inherent and integral part of either the robbery with a
dangerous weapon or the assault. Under the rationale of Irwin
N.C. at 103, 282 S.E.2d at 446, we are compelled to vacate
defendant's conviction for second-degree kidnapping.
Having vacated the second-degree kidnapping charge, it is
unnecessary for us to address defendant's other assignment of error
related to that charge. See Ross
, 133 N.C. App. at 315, 515 S.E.2d
Defendant's conviction for second-degree kidnapping is
vacated. We find no other error in defendant's trial.
VACATED in part; NO ERROR in part.
Judge GEER concurs.
Judge STEPHENS concurs prior to 31 December 2006.
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