Appeal by defendant from a judgment dated 29 September 2005 by
Judge Michael R. Morgan in Chatham County Superior Court. Heard in
the Court of Appeals 6 December 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Donna B. Wojcik, for the State.
Sue Genrich Berry, for the defendant.
BRYANT, Judge.
Jamie Junior Foxx (defendant) appeals from a 29 September 2005
judgment entered consistent with a jury verdict finding him guilty
of one count of second degree kidnapping and one count of robbery
with a dangerous weapon. The trial court imposed a consolidated
sentence of a minimum term of 106 months to a maximum term of 137
months imprisonment. We find no error in the judgment of the trial
court.
Facts
On the morning of 10 July 2005, Antonio Hernandez was walking
along Highway 64 towards a friend's home. The evidence presented
tended to show that defendant called out to Mr. Hernandez as he
walked past defendant's home. Mr. Hernandez knew defendant fromprevious transactions involving sex for money. Defendant told Mr.
Hernandez that a girl wanted to talk to him. Mr. Hernandez walked
up to the door of defendant's house and looked inside. Instead of
seeing a girl inside the house, he saw another male. Mr. Hernandez
tried to move away, but defendant pushed him inside the house.
Defendant then demanded money from Mr. Hernandez and continued
to push him in the room. Mr. Hernandez testified that he fell over
a piece of furniture and attempted to leave the house. Defendant
called to the other male in the house, who brought a knife with a
five-inch blade to defendant. Defendant held the knife to Mr.
Hernandez's chest and grabbed Hernandez's wallet. Defendant took
$1,240.00 from the wallet and gave the wallet back to Mr.
Hernandez. Defendant then told Mr. Hernandez to “go on” and
allowed him to leave the house. When defendant was later
apprehended, he was carrying a knife in his rear pocket and eight
one-hundred dollar bills in his left shoe.
_________________________
Defendant raises one issue on appeal: whether the trial court
erred in denying defendant's motion to dismiss the charge of second
degree kidnapping. Defendant argues the trial court erred in
denying his motion to dismiss the second degree kidnapping charge
because the restraint alleged in the kidnapping charge was an
inherent part of the robbery with a dangerous weapon.
Specifically, defendant contends that the restraint of Mr.
Hernandez was a “mere technical asportation” and defendant'sconviction on both charges violates his constitutional protection
from double jeopardy. We disagree.
Kidnapping is defined as the unlawful confinement, restraint,
or removal of a person from one place to another for the purpose
of: (1) holding that person for a ransom or as a hostage, (2)
facilitating the commission of a felony or facilitating flight of
any person following the commission of a felony, (3) doing serious
bodily harm to or terrorizing the person, or (4) holding that
person in involuntary servitude. N.C. Gen. Stat. . 14-39(a)
(2005). Second degree kidnapping is a kidnapping in which the
victim is released in a safe place and has not been seriously
injured or sexually assaulted. N.C. Gen. Stat. . 14-39(b) (2005).
Unlawful confinement, restraint or removal that facilitates
the commission of a felony is considered kidnapping. N.C. Gen.
Stat. . 14-39(a)(2) (2005). Certain felonies, such as robbery with
a dangerous weapon, cannot be committed without some restraint of
the victim.
State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338,
351 (1978). However, it was not the Legislature's intent to make
that restraint a kidnapping, thus, allowing for the conviction of
two crimes and violating the constitutional prohibition of double
jeopardy.
Id. For restraint to be considered a kidnapping, it
must be “a separate, complete act, independent of and apart from
the other felony.”
Id. at 524, 243 S.E.2d 352.
Defendant cites
State v. Ripley, 360 N.C. 333, 626 S.E.2d 289
(2006), in support of his argument that the restraint alleged in
the kidnapping charge was an inherent part of the robbery with adangerous weapon. In
Ripley, our Supreme Court held that “a trial
court, in determining whether a defendant's asportation of a victim
during the commission of a separate felony offense constitutes
kidnapping, must consider whether the asportation was an inherent
part of the separate felony offense, that is, whether the movement
was a mere technical asportation.”
Id. at 340, 626 S.E.2d at 293-
94 (internal quotations omitted). Further, the Court found in
Ripley that the moment the defendant's accomplice drew his firearm,
the robbery with a dangerous weapon had begun and the subsequent
movement of the victims was a mere technical asportation.
Id. at
340, 626 S.E.2d at 294.
In this case, the evidence tended to show that the victim
approached the door of a house expecting to find a woman inside.
Instead, the victim saw a male in the house and subsequently tried
to leave. Defendant then pushed the victim
into the house before
demanding money. The victim attempted to leave but was pushed
again, causing him to fall over a piece of furniture. Only then
did the other male in the house bring over the weapon, which
defendant held against the victim while taking his wallet.
Pursuant to
Ripley, this Court has held that an armed robbery
begins once the defendant brandishes a weapon and demands money.
See, e.g., State v. Cartwright, __ N.C. App. __, __, 629 S.E.2d
318, 323 (2006) (holding that the robbery began when defendant
showed the weapon to the victim and demanded money and all
subsequent movement of the victim was mere asportation). Moreover,
this Court has held that restraint and removal prior to thebrandishing of a weapon and demand for money is a separate act
apart from the robbery.
State v. Boyce, __ N.C. App. __, __, 625
S.E.2d 553, 555-56 (2006). In
Boyce, defendant attempted to push
his way into the victim's home through the front door as she tried
to shut the door.
Id. at __, 625 S.E.2d at 554. The victim ran to
the back door and got partially out of the doorway before defendant
pulled her back into the home.
Id. As he dragged her back in, the
victim fell to the floor.
Id. It was then that the victim noticed
defendant's gun and that defendant demanded money.
Id. This Court
held that the grabbing and pulling of the victim into the home was
“closely related to the robbery, but was not an inherent incident
thereof” because the acts were completed before the robbery took
place.
Id. at __, 625 S.E.2d at 556.
In the instant case, defendant removed Mr. Hernandez from
outside of the house and restrained him in the house before
demanding money and brandishing a knife.
Thus, defendant's removal
and restraint of Mr. Hernandez was closely related to the robbery,
but not an inherent part of it.
The trial court properly denied
defendant's motion to dismiss the kidnapping charge. This
assignment of error is overruled.
No error.
Judges McGEE and STEELMAN concur.
Report per Rule 30(e).
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