An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-437


Filed: 2 January 2007


v .                         Chatham County
                            Nos. 05 CRS 51327-28

    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.


    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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