Appeal by Defendant from judgment dated 7 November 2005 by
Judge Ronald L. Stephens in Superior Court, Durham County. Heard
in the Court of Appeals 13 December 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Leonard G. Green, for the State.
Anne Bleyman for Defendant-Appellant.
Michael Anthony Tart (Defendant) was convicted of first-degree
kidnapping and robbery with a dangerous weapon. The trial court
sentenced Defendant to a term of 133 months to 169 months in
prison. Defendant appeals.
At trial, Jose Medina (Mr. Medina) testified that he drove his
1995 Chevrolet Lumina automobile (the vehicle) to pick up his
girlfriend, Nancy Pechecko (Ms. Pechecko), from work between 8:15
p.m. and 8:30 p.m. on 21 August 2001. The couple's three-year-old
daughter (the child) was in a car seat in the back of the vehicle.
Mr. Medina testified that two people approached his vehicle at the
intersection of Geer and Foster Streets in Durham; one went behind
the vehicle and the other, who had a gun, went to the driver's sideof the vehicle.
Mr. Medina testified that the gunman yelled at him and told
him to get out of the vehicle. Mr. Medina told the gunman that he
could not get out of the vehicle because his daughter was in the
back seat. The gunman said he did not care and again told Mr.
Medina to get out. As Mr. Medina opened the door to get out, the
gunman grabbed Mr. Medina's hair and pushed his head down. Mr.
Medina testified that the person who went behind the vehicle was
not far away and kept turning around, causing Mr. Medina to think
he was the gunman's accomplice.
Mr. Medina further testified that the gunman got in the
vehicle and started to drive away. Mr. Medina jumped on the hood
but was thrown off. Mr. Medina then saw the person who had been
behind the vehicle walking down the road, beyond the intersection.
Mr. Medina saw the vehicle stop beyond the intersection and saw the
light come on inside the vehicle. The vehicle drove away and Mr.
Medina no longer saw the person who had been walking down the road.
Mr. Medina ran to Ms. Pechecko's workplace and Ms. Pechecko
called the police. Mr. Medina told Ms. Pechecko that two black
people had mugged him. However, at trial, Mr. Medina testified
that he thought only one of the attackers had been black. Mr.
Medina testified that the person who walked behind his vehicle had
been wearing a light colored tee shirt. Mr. Medina said the gunman
was wearing a long-sleeved, dark colored shirt.
Durham Police Department Investigator Nikki Byrd (Investigator
Byrd) testified that when she spoke with Mr. Medina on 21 August2004, he described the vehicle and said the suspects were two black
males wearing white tee shirts, blue jeans, and black doo-rags.
Investigator Byrd broadcast a report that a vehicle had been stolen
with a small child inside and she described the suspects. Durham
Police Officer Dallas Myatt (Officer Myatt) testified that he heard
a broadcast over the dispatch channel and then contacted the Amber
Alert system. An Amber Alert was issued for the child.
Alamance County Sheriff's Deputy Adam Nicholson (Deputy
Nicholson) testified that he was dispatched to a Budget Inn in
Mebane around 9:30 p.m. or 10:00 p.m. on 21 August 2004, where he
talked with a man who was holding a little girl. The man told
Deputy Nicholson that he was passing through the area on his
motorcycle when he saw the little girl crying in a field and picked
her up. Deputy Nicholson testified the little girl was hysterical
and nervous and was wet from both rain and urine. Deputy Nicholson
learned of the Amber Alert issued from Durham County. Deputy
Nicholson's corporal contacted Durham Police to let them know they
had found a female child. When Ms. Pechecko arrived with a Durham
Police officer, Deputy Nicholson gave Ms. Pechecko the child, who
held on to her mother "for dear life."
North Carolina State Highway Patrol Trooper Steven Smith
(Trooper Smith) testified that he was on duty on the night of 21
August 2004, observing traffic from the shoulder of I-85 near
Butner. Trooper Smith stopped a white male for speeding around
11:20 p.m. on 21 August 2004. Trooper Smith testified that the
person he stopped was wearing a white tee shirt. At trial, TrooperSmith identified Defendant as the person he stopped on 21 August
2004. He testified that Defendant was driving a Chevrolet Lumina,
the same vehicle that had been stolen from Mr. Medina earlier in
the evening. Although Trooper Smith ran a check on the license
plate of the vehicle, the vehicle was not listed as stolen.
However, Trooper Smith testified that the next day he received a
delayed notification that the vehicle had been stolen in a
kidnapping and carjacking in Durham.
Jesse Battle (Mr. Battle) testified that he was the director
of the men's program at Triangle Residential Options for Substance
Abusers (TROSA) in Durham. TROSA is a two-year residential
substance abuse recovery program. Mr. Battle testified that
Defendant was a resident at the TROSA facility at 1001 North Street
in Durham, and that the log book indicated that Defendant left the
facility voluntarily at 8:20 p.m. on 21 August 2004. However, Mr.
Battle acknowledged that, based on another notation in the log
book, Defendant may have left the facility at 8:30 p.m. on 20
August 2004. The TROSA facility was in the vicinity of the
intersection where the crimes occurred.
Valerie House testified Defendant called her in late August
2004 to tell her he was coming to Harnett County to visit her
daughter in a car he had borrowed from a friend. Valerie House
testified that Defendant arrived in a Chevrolet Lumina and spent a
few days in the area. Valerie House's mother, Elsie Hollins, also
testified that she saw Defendant in Dunn in August 2004. Elsie
Hollins testified that Defendant said he borrowed the vehicle hewas driving from a friend. Defendant further told Elsie Hollins
that when "he was leaving Durham, [he] made a missed turn and ended
up in Virginia and that was where he was coming from[.]"
Defendant gave a statement to Durham Police Department
Investigator Michelle Soucie (Investigator Soucie) in which
Defendant said he left TROSA around 8:30 p.m. on 21 August 2004 and
started walking downtown. Defendant also told Investigator Soucie
that he had taken a bus from Durham to Dunn after he left TROSA
that evening. However, Investigator Soucie testified there were no
buses running to Dunn after 5:00 p.m. on 21 August 2004. Defendant
did not present any evidence.
Defendant argues the trial court erred in denying his motions
to dismiss and by instructing the jury on the charges of first-
degree kidnapping and robbery with a dangerous weapon.
Specifically, Defendant argues there was insufficient evidence of
intent to terrorize to support the kidnapping charge and
insufficient evidence that Defendant was the perpetrator of either
We first note that although Defendant argues the trial court
erred by instructing the jury on first-degree kidnapping and
robbery with a dangerous weapon, Defendant did not object at trial
to the instructions on these charges. Moreover, although Defendant
alleges plain error in his assignments of error, he does not argue
in his brief that the trial court committed plain error.
Therefore, Defendant has waived appellate review of theseassignments of error. State v. Scercy
, 159 N.C. App. 344, 354, 583
S.E.2d 339, 345, disc. review denied
, 357 N.C. 581, 589 S.E.2d 363
We review only Defendant's argument that the trial court erred
by denying his motions to dismiss. In ruling on a motion to
dismiss, a trial court must determine "'whether there is
substantial evidence of each essential element of the offense
charged and of the defendant being the perpetrator of the
offense.'" State v. Williams
, 150 N.C. App. 497, 501, 563 S.E.2d
616, 618 (2002) (quoting State v. Crawford
, 344 N.C. 65, 73, 472
S.E.2d 920, 925 (1996)). Substantial evidence is evidence "which
a reasonable juror would consider sufficient to support the
conclusion that each essential element of the crime exists." State
, 141 N.C. App. 596, 604, 540 S.E.2d 815, 821 (2000). A
trial court must consider the evidence in the light most favorable
to the State and give the State the benefit of the reasonable
inferences to be drawn from the evidence. Williams
, 150 N.C. App.
at 501, 563 S.E.2d at 619.
Defendant argues there was insufficient evidence of an intent
to terrorize the child. The elements of first-degree kidnapping
relevant to the present case are: (1) the unlawful removal from one
place to another; (2) of any person under 16 years of age without
the consent of such person's parent; (3) for the purpose of
terrorizing that person or another; and (4) that person was not
released by the defendant in a safe place. N.C. Gen. Stat. § 14-
39(a)(b) (2005). The term terrorizing means "more than justputting another in fear. It means putting that person in some high
degree of fear, a state of intense fright or apprehension." State
, 315 N.C. 738, 745, 340 S.E.2d 401, 405 (1986).
"Intent is a condition of the mind ordinarily susceptible of
proof only by circumstantial evidence." State v. Pigott
, 331 N.C.
199, 211, 415 S.E.2d 555, 562 (1992). "The presence or absence of
[a] defendant's intent or purpose to terrorize . . . may be
inferred by the fact-finder from the circumstances surrounding the
events constituting the alleged crime." Baldwin
, 141 N.C. App. at
605, 540 S.E.2d at 821. Moreover, the victim's subjective feelings
of fear are relevant when determining whether a defendant acted
with intent to terrorize. Id.
at 604, 540 S.E.2d at 821.
In the present case, there was sufficient evidence that
Defendant had the intent to terrorize the child when he
participated in the kidnapping. The State proceeded on a theory of
acting in concert. Under this theory,
"'[i]f "two persons join in a purpose to
commit a crime, each of them, if actually or
constructively present, is not only guilty as
a principal if the other commits that
particular crime, but he is also guilty of any
other crime committed by the other in
pursuance of the common purpose . . . or as a
natural or probable consequence thereof."'"
State v. Mann
, 355 N.C. 294, 306, 560 S.E.2d 776, 784 (citations
omitted), cert. denied
, Mann v. North Carolina
, 537 U.S. 1005, 154
L. Ed. 2d 403 (2002). When Mr. Medina told the gunman that he
could not get out of his vehicle because his daughter was in the
back seat, the gunman said he did not care and told Mr. Medina to
get out of the vehicle anyway. These actions tended to show thatthe gunman, and his accomplice, were indifferent to the fact that
the child was in the vehicle. Moreover, when Deputy Nicholson
arrived at the Budget Inn in Mebane, the child was crying and was
soaking wet from both rain and urine. The child had been found
crying in a field and was hysterical and nervous. These facts tend
to show that the child was in a high state of fear and was
intensely frightened as a result of being kidnapped, driven to
Mebane, and left in a field. This was substantial evidence that a
reasonable juror could consider sufficient to establish Defendant's
intent to terrorize the child.
Defendant also argues there was insufficient evidence that he
was a perpetrator of either first-degree kidnapping or robbery with
a dangerous weapon. Defendant argues that the doctrine of recent
possession does not apply in the present case because the trial
court did not instruct the jury on this doctrine. However, in
reviewing a motion to dismiss at the close of the State's evidence
and at the close of all the evidence, we do not review the
instructions given to the jury. When a defendant moves to dismiss,
no instructions have yet been given. Rather, as we stated earlier,
in reviewing the denial of a motion to dismiss we determine only
"'whether there is substantial evidence of each essential element
of the offense charged and of the defendant being the perpetrator
of the offense.'" Williams
, 150 N.C. App. at 501, 563 S.E.2d at
618 (quoting Crawford
, 344 N.C. at 73, 472 S.E.2d at 925).
Therefore, whether or not the trial court subsequently instructed
the jury on the doctrine of recent possession is not relevant toour determination of whether the trial court erred by denying
Defendant's motions to dismiss.
We hold that under the doctrine of recent possession, with
circumstantial evidence placing Defendant at the scene of the
crime, there was sufficient evidence that Defendant was the
perpetrator of first-degree kidnapping and robbery with a dangerous
weapon. Our Supreme Court has recognized that
[i]t is well established that the "possession
of stolen property recently after the theft,
and under circumstances excluding the
intervening agency of others[,] affords
presumptive evidence that the person in
possession is himself the thief, and the
evidence is stronger or weaker, as the
possession is nearer to or more distant from
the time of the commission."
State v. Joyner
, 301 N.C. 18, 28, 269 S.E.2d 125, 132 (1980)
(quoting State v. Patterson
, 78 N.C. 470, 472-73 (1878)).
[w]hen the evidence strongly suggests that
"all [of] the crimes including the larceny
occurred as a part of the same criminal
enterprise" by the same assailant, a
defendant's recent possession of stolen
property is a relevant consideration in
determining whether the defendant is guilty of
all the crimes charged against him.
State v. Poole
, 82 N.C. App. 117, 121, 345 S.E.2d 466, 469 (1986)
, 301 N.C. at 29, 269 S.E.2d at 132), disc. review
, 318 N.C. 700, 351 S.E.2d 757 (1987).
Mr. Medina testified that the kidnapping and robbery occurred
between 8:15 p.m. and 8:30 p.m. on 21 August 2004. Defendant was
driving the vehicle that had been stolen from Mr. Medina earlier in
the evening, when Trooper Smith stopped Defendant for speedingaround 11:20 p.m. on 21 August 2004. From Defendant's possession
of the vehicle less than three hours after the robbery, it can be
inferred that Defendant was the thief. See Joyner
, 301 N.C. at 28,
269 S.E.2d at 132. It can further be inferred from this evidence
that Defendant was guilty of both the robbery with a dangerous
weapon and first-degree kidnapping. See Poole
, 82 N.C. App. at
121, 345 S.E.2d at 469.
Moreover, there was evidence that Defendant was in the area
where the crimes occurred. Mr. Battle testified that Defendant
left the TROSA facility voluntarily around 8:20 p.m. on 21 August
2004. Additionally, Defendant gave a statement to Investigator
Soucie in which Defendant said he left TROSA around 8:30 p.m. on 21
August 2004 and started walking downtown. The TROSA facility was
in the vicinity of the intersection where the crimes occurred.
Defendant had previously called Valerie House to tell her that he
was coming to Harnett County to visit her daughter. Defendant told
Investigator Soucie that he took a bus from Durham to Dunn after he
left TROSA on 21 August 2004. However, Investigator Soucie
testified that there were no buses running to Dunn after 5:00 p.m.
on 21 August 2004. We hold that there was substantial evidence
that Defendant was the perpetrator of the crimes for which he was
convicted. Specifically, there was substantial evidence that
Defendant was the gunman's accomplice. Under the doctrine of
acting in concert, Defendant is liable for the acts of the gunman,
and we therefore hold that the trial court did not err in denying
Defendant's motions to dismiss.
Defendant argues the trial court erred by instructing the jury
on the theory of acting in concert. Specifically, Defendant argues
that because there was insufficient evidence that Defendant was
present at the scene of the crimes, there was insufficient evidence
to support a jury instruction on acting in concert. However, as we
stated in section I, there was sufficient evidence that Defendant
was the perpetrator of first-degree kidnapping and robbery with a
dangerous weapon. Therefore, this argument is without merit.
Defendant also argues there was no evidence of a common
purpose between the two perpetrators. We disagree. Mr. Medina
testified that two people approached his vehicle at the
intersection of Geer and Foster Streets; one went behind the
vehicle and the other, who had a gun, went to the driver's side of
the vehicle. Mr. Medina testified that the person who went behind
the vehicle was not far away and kept turning around, causing Mr.
Medina to think that person was the gunman's accomplice. This
tends to show that the two people were working together. Mr.
Medina further testified that after the gunman forced Mr. Medina
out of the vehicle, got into the vehicle, and drove away, Mr.
Medina saw the other person walking down the road, beyond the
intersection. Mr. Medina then saw the vehicle stop beyond the
intersection and saw the light come on inside the vehicle. After
the vehicle drove away, Mr. Medina no longer saw the other person
who had been walking down the road. This evidence tends to show
that the gunman stopped the vehicle, allowed the other person toget in, and drove away. Based upon this evidence, there was
substantial evidence that the two perpetrators were acting with a
common purpose. We overrule these assignments of error.
Defendant argues the trial court committed plain error by
failing to instruct the jury on false imprisonment. Because
Defendant failed to request this instruction at trial, we apply the
plain error rule. See
N.C.R. App. P. 10(c)(4).
Plain error includes error that is a
fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done; or grave error
that amounts to a denial of a fundamental
right of the accused; or error that has
resulted in a miscarriage of justice or in the
denial to [the] appellant of a fair trial.
State v. Gregory
, 342 N.C. 580, 586, 467 S.E.2d 28, 32 (1996)
(citing State v. Odom
, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983)). "[I]n order to prevail under the plain error rule, [a]
defendant must convince this Court that (1) there was error and (2)
without this error, the jury would probably have reached a
different verdict." State v. Najewicz
, 112 N.C. App. 280, 294, 436
S.E.2d 132, 141 (1993), disc. review denied
, 335 N.C. 563, 441
S.E.2d 130 (1994).
"False imprisonment is a lesser included offense of
kidnapping." State v. Kyle
, 333 N.C. 687, 703, 430 S.E.2d 412, 421
(1993). "The difference between kidnapping and the lesser-included
offense of false imprisonment is the purpose of the confinement,
restraint, or removal of another person. The offense is kidnapping
if the reason for the restraint was to accomplish one of thepurposes enumerated in the kidnapping statute." State v. Mangum
158 N.C. App. 187, 197, 580 S.E.2d 750, 757, disc. review denied
357 N.C. 510, 588 S.E.2d 378 (2003). In the absence of evidence of
a statutorily-enumerated purpose, the offense is false
imprisonment. "Where the State presents evidence of every element
of the [greater] offense, and there is no evidence to negate these
elements other than the defendant's denial that he committed the
offense, then no lesser-included offense need be submitted." Id.
In the present case, there was no evidence to negate the
element of intent to terrorize. Defendant argues there was
insufficient evidence that he committed any crime, effectively
denying that he committed false imprisonment. With no other
evidence to negate the elements of the crime other than defendant's
denial, the trial court was not required to instruct the jury on
false imprisonment. We overrule this assignment of error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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