Converted WP file 061043-1

Appeal by defendant from judgments entered 10 June 2005 and 2 May 2006 by Judge W. David Lee in Davidson County Superior Court. Heard in the Court of Appeals 21 March 2007.

Attorney General Roy Cooper, by Assistant Attorney General Leonard G. Green, for the State.

Charlotte Gail Blake, for defendant-appellant.

    CALABRIA, Judge.

    John David Campbell (“defendant”) appeals from judgments entered upon a jury verdict finding him guilty of robbery with a dangerous weapon and first degree kidnapping. We vacate the judgment sentencing defendant on first degree kidnapping, and reverse and remand for a new trial regarding the robbery with a dangerous weapon and first degree kidnapping convictions.
    At trial in Davidson County Superior Court, Rebecca Walker (“the victim”) testified that she was driving a taxicab in Lexington on 1 August 2004 when she was dispatched to an address on West Sixth Avenue. She stated that a man exited the house carrying a black duffel bag and entered her taxicab. Kenneth Bullabough (“Bullabough”), who lived at the residence, testified thatdefendant left his home in the early morning hours of 1 August 2004 when the taxicab arrived. He further testified that defendant carried a black duffel bag.
    The victim testified that defendant directed her to take him to a house on Louya Road, approximately five miles away. When they arrived at Louya Road, the victim stopped the car. At this time, defendant reached from the back seat, put one arm around her neck, and held her head against the headrest. With his other hand, defendant held a sharp object to the victim's neck. The victim believed the object was a knife, but never actually saw the object. The defendant told her, “If you do exactly as I tell you, I won't hurt you.”
    Defendant directed the victim to push the button unlocking the trunk, then said, “I want you to get out of the car very slowly and don't make any sudden moves.” Defendant then walked the victim to the back of the taxicab and told her to “crawl in the trunk.” The victim climbed into the trunk and sat down. The defendant closed the trunk lid which struck the victim on the top of her head. Defendant then drove erratically for about 10 or 15 minutes before abandoning the taxicab. From the trunk, the victim heard a conversation between the night-time dispatcher and the taxicab company's manager coming from the taxicab's two-way radio. She heard her dispatcher say, “Becky, we have got a posse out for you,” right before defendant stopped the taxicab.
    After defendant departed, the victim used a tire iron to bang on the trunk. She was trapped in the trunk for approximately 30minutes before a fellow cab driver found her. The money from the victim's fare bag was gone and the cab's two-way radio wires had been cut. The defendant did not present any evidence at trial.
    Following defendant's trial, the jury returned a verdict finding defendant guilty of first degree kidnapping and robbery with a dangerous weapon. The trial court arrested judgment on the first degree kidnapping charge. Judge W. David Lee then entered judgment upon the guilty verdict for robbery with a dangerous weapon, sentencing defendant to a minimum of 142 months and a maximum of 180 months in the custody of the North Carolina Department of Corrections. Defendant appeals from this judgment.     On 16 June 2005, the State filed a motion for appropriate relief seeking to reverse the trial court's decision to arrest judgment on the first degree kidnapping conviction. Defendant responded with a motion to dismiss the State's motion for appropriate relief. The trial court heard both motions and on 19 October 2005 granted the State's motion and ordered a sentencing hearing for the first degree kidnapping conviction.
    On 2 May 2006, Judge Lee entered judgment upon the jury verdict finding defendant guilty of first degree kidnapping and sentenced defendant to a minimum of 158 months and a maximum of 199 months in the custody of the North Carolina Department of Correction. The sentence for first degree kidnapping was to run consecutive to defendant's sentence for robbery with a dangerous weapon. Defendant appeals from these judgments.
    I. Motion for Appropriate Relief    Defendant initially argues the trial court erred by granting the State's motion for appropriate relief and sentencing defendant for first degree kidnapping. We agree.
    North Carolina General Statutes . 15A-1416(a) allows the State to correct “any error which it may assert upon appeal,” so long as it brings a motion for appropriate relief “[a]fter the verdict but not more than 10 days after entry of judgment.” N.C. Gen. Stat. § 15A-1416(a) (2005). Here, the State filed its motion for appropriate relief on 16 June 2005 following the 10 June 2005 jury verdict and entry of judgment. Since the State's motion was timely, we need only determine whether the error is one the State may assert on appeal.
    North Carolina General Statutes . 15A-1445 provides, in relevant part:
        (a) Unless the rule against double jeopardy prohibits further prosecution, the State may appeal from the superior court to the appellate division:

        (1) When there has been a decision or judgment dismissing criminal charges as to one or more counts.

N.C. Gen. Stat. . 15A-1445(a)(1) (2005). Therefore, we must consider whether the court's order arresting judgment on the first degree kidnapping conviction was a “decision or judgment dismissing criminal charges.” Id. In State v. Pakulski, 326 N.C. 434, 390 S.E.2d 129 (1990), our Supreme Court considered the effect of an order arresting judgment on convictions for the two predicate felonies that supported the defendant's felony murder conviction. The question arose because the defendant's felony murder convictionwas reversed on appeal. 326 N.C. at 435, 390 S.E.2d at 129. The new trial resulted in a mistrial, and the State then requested judgment on the previously arrested predicate felony convictions. 326 N.C. at 436, 390 S.E.2d at 130. Thereafter, the trial court sentenced the defendant on the predicate felonies. 326 N.C. at 438, 390 S.E.2d at 131.
    On appeal, the defendant argued that the trial court erred by sentencing him on the arrested predicate felonies, because the arrest of judgment was equivalent to a dismissal of those charges. 326 N.C. at 439, 390 S.E.2d at 132. The Supreme Court disagreed, stating:
While we agree that in certain cases an arrest of judgment does indeed have the effect of vacating the verdict, we find that in other situations an arrest of judgment serves only to withhold judgment on a valid verdict which remains intact. When judgment is arrested because of a fatal flaw which appears on the face of the record, such as a substantive error on the indictment, the verdict itself is vacated and the state must seek a new indictment if it elects to proceed again against the defendant. State v. Benton, 275 N.C. 378, 167 S.E.2d 775 (1969); State v. Cook, 272 N.C. 728, 158 S.E.2d 820 (1968); State v. Covington, 267 N.C. 292, 148 S.E.2d 138 (1966). See also 21 Am.Jur.2d Criminal Law § 524 (1981) (“The granting of a motion in arrest of judgment does not operate as an acquittal but only places the defendant in the same situation in which he was before the prosecution was begun.”). However, we hold that when judgment is arrested on predicate felonies in a felony murder case to avoid a double jeopardy problem, the guilty verdicts on the underlying felonies remain on the docket and judgment can be entered if the conviction for the murder is later reversed on appeal, and the convictions on the predicate felonies are not disturbed upon appeal.
Pakulski, 326 N.C. at 439, 390 S.E.2d at 132.
    Here, the trial court entered an order arresting judgment on the defendant's conviction for first degree kidnapping, but sentenced the defendant on his conviction for robbery with a dangerous weapon. The trial court appears to have arrested judgment due to a concern that the kidnapping was “technical asportation, inherent in the other offense perpetrated [robbery with a dangerous weapon],” such that “separate and additional punishment” for the asportation would violate the defendant's constitutional protection against double jeopardy. State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981). Under Pakulski, this type of arrest of judgment does not vacate the verdict; rather, it “withhold[s] judgment on a valid verdict which remains intact.” Id., 326 N.C. at 439, 390 S.E.2d at 132.
    In this case, because the arrest of judgment was not a “decision or judgment dismissing criminal charges” pursuant to N.C. Gen. Stat. § 15A-1445(a)(1), the State does not have a right to appeal the arrest of judgment. Correspondingly, the State did not have a right to file a motion for appropriate relief assigning error to the arrest of judgment pursuant to N.C. Gen. Stat. § 15A- 1416 and the trial court should have dismissed the motion. We therefore reverse the order of the trial court granting the State's motion for appropriate relief and vacate the judgment sentencing the defendant for first degree kidnapping.
    II. Lesser included offense of common law robbery    Defendant argues the trial court erred by refusing to instruct the jury on the lesser included offense of common law robbery, as requested by defendant, because the evidence supported the submission of this issue to the jury. “It is reversible error for the trial court not to submit to the jury such lesser included offenses to the crime charged as are supported by the evidence.” State v. Lytton, 319 N.C. 422, 426-27, 355 S.E.2d 485, 487 (1987).
        We have held that where the uncontroverted evidence is positive and unequivocal as to each and every element of armed robbery, and there is no evidence supporting defendant's guilt of a lesser included offense, the trial court does not err by failing to instruct the jury on the lesser included offense of common law robbery. State v. Peacock, 313 N.C. 554, 562, 330 S.E.2d 190, 195 (1985). “The sole factor determining the judge's obligation to give such an instruction is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense.” State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981).

State v. Cummings, 346 N.C. 291, 325, 488 S.E.2d 550, 570 (1997).
    “The critical difference between armed robbery and common law robbery is that the former is accomplished by the use or threatened use of a dangerous weapon whereby the life of a person is endangered or threatened.” Peacock, 313 N.C. at 562, 330 S.E.2d at 195. The use or threat of a dangerous weapon is not an essential element of common law robbery. State v. Moore, 279 N.C. 455, 183 S.E.2d 546 (1971). Thus, if the defendant used a weapon which is considered a dangerous weapon as a matter of law, then the trial court should not submit the issue of common law robbery to the jury. If there is a jury question as to whether a “dangerousweapon” was used, then the court must submit the lesser-included offense of common law robbery to the jury. See State v. Palmer, 293 N.C. 633, 239 S.E.2d 406 (1977).
    This Court has previously noted:
        [T]he case law regarding knives as dangerous weapons gives rise to a certain amount of confusion.

        . . . .

        Our research has disclosed no case which unequivocally holds that a knife is always a dangerous weapon per se. Rather, the circumstances of each case must be considered: for example, the extent of the threat to the victim, State v. Ross, supra (knife held to throat); the physical stature of the knife wielder, State v. Sturdivant, supra (large man used knife); the weakened state of the victim, State v. Archbell, 139 N.C. 537, 51 S.E. 801 (1905); or whether or not and to what extent the victim was actually injured, State v. Roper, 39 N.C. App. 256, 249 S.E.2d 870 (1978) (victim's throat slashed). The circumstances of the case, rather than the physical description of the knife itself, ultimately determine this issue. Sturdivant. This is particularly true in armed robbery cases because the issue of whether a weapon is dangerous is so closely related to another key element, i.e., whether a person's life was in fact endangered or threatened. N.C. Gen. Stat. . 14-87(a); State v. Alston, 305 N.C. 647, 290 S.E.2d 614 (1982).

State v. Smallwood, 78 N.C. App. 365, 368, 337 S.E.2d 143, 144-45 (1985). After surveying many cases regarding use of knives as a weapon, this Court in Smallwood determined that “[i]n cases where the knife has not been produced or described in detail, and the victim has not suffered injury or death, the question of whether a knife is a dangerous weapon is generally for the jury.” Id., 78 N.C. App. at 369, 337 S.E.2d at 145.     In this case, the evidence showed that defendant got into the victim's taxicab and placed a sharp object, which the victim believed to be a knife, at her throat and robbed her. The victim was unable to describe the sharp object. No knife or other weapon was recovered from the defendant or the vehicle. The victim was not actually injured by the sharp object which the defendant held to her neck. Even if the State's evidence was fully accepted by the jury, reasonable people could “draw different conclusions” about the sharp object's dangerous character. Palmer, 293 N.C. at 643, 239 S.E.2d at 413. Thus, the evidence raised a question for the jury as to the existence and use of a “dangerous weapon” by defendant. Therefore, the trial court should have submitted the issue of common law robbery to the jury.
    If the jury determined that the “sharp object” held to the victim's throat was not a knife or was not a “dangerous weapon,” the jury could not have convicted defendant of robbery with a dangerous weapon, but only of common law robbery. “This option was not given to the jury. It was raised by the evidence. The case, therefore, falls within the principle that a defendant is entitled to have all lesser degrees of offenses supported by the evidence submitted to the jury as possible alternate verdicts.” Id., 293 N.C. at 643-44, 239 S.E.2d at 413 (citations omitted).
    The trial court's failure to submit the lesser offense was “not cured by the verdict” of robbery with a dangerous weapon, because “it cannot be known whether the jury would have convicted defendant of the lesser offense if it had been permitted to do so.” Id., 293 N.C. at 644, 239 S.E.2d at 413 (citations omitted). Therefore, in the case sub judice, failure to submit the issue of common law robbery was prejudicial error which entitles the defendant to a new trial on the charge of robbery with a dangerous weapon.
    III. First degree kidnapping
    Because it is probable that the remaining issues raised by defendant may arise again upon remand, as the State could still pray for judgment upon the guilty verdict for first degree kidnapping, we will address the other issues raised by defendant's assignments of error as to the kidnapping conviction.   (See footnote 1) Defendant argues that the trial court erred by denying his motion to dismiss the charge of first degree kidnapping because there was insufficient evidence for a rational trier of fact to find the elements of this offense beyond a reasonable doubt. Our courts have established the following standard in reviewing a trial court's denial of a motion to dismiss:
        In ruling upon a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences which may be drawn from the evidence. The court must determine whether substantial evidence supports each essential element of the offense and the defendant's perpetration of that offense. If so, the motion must be denied andthe case submitted to the jury. “'Substantial evidence' is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.”
State v. Hairston, 137 N.C. App. 352, 354, 528 S.E.2d 29, 30 (2000) (internal citations omitted).
    Our General Statutes define kidnapping in pertinent part as follows:
        (a) Any person who 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 or legal custodian of such person, shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:
        ...

        (2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; . . .

        (b) There shall be two degrees of kidnapping as defined by subsection (a). If the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree and is punishable as a Class C felony. If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree and is punishable as a Class E felony.
N.C. Gen. Stat. . 14-39(a) (2005).
    Defendant was indicted for first degree kidnapping based upon “the purpose of facilitating the commission of Robbery with a Dangerous Weapon and for the purpose of facilitating the flight of [defendant] following the commission of Robbery with a Dangerous Weapon” and that the victim was “not released by the defendant ina safe place.” Therefore, we must consider whether there was substantial evidence to support the jury finding that defendant committed the crime of kidnapping to “facilitate the commission of any felony” or his flight “following the commission of a felony.” N.C. Gen. Stat. § 14-39(a) (2006). It is not necessary that the defendant be found guilty of robbery with a dangerous weapon, the alleged felony supporting the kidnapping indictment, since he could also be found guilty of common law robbery as a felony which would support the kidnapping charge. See State v. Parker, 81 N.C. App. 443, 344 S.E.2d 330 (1986). However, defendant must be found guilty of one of these felonies -- either robbery with a dangerous weapon or the lesser included offense of common law robbery -- to support a conviction of first degree kidnapping. See State v. Martin, 47 N.C. App. 223, 267 S.E.2d 35 (1980). Because we grant defendant a new trial on his conviction of robbery with a dangerous weapon, we must also reverse and grant a new trial to defendant upon the first degree kidnapping charge.
    Defendant also argues that the trial court erred by denying his motion to dismiss the first degree kidnapping charges because the kidnapping was an integral part of the robbery with a dangerous weapon and not a separate and distinct crime, thus violating his constitutional protections against double jeopardy. The Double Jeopardy Clause of the Fifth Amendment prohibits multiple punishments for the “same offense.” North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 656 (1969). We find that defendant'sconviction for both robbery with a dangerous weapon and first degree kidnapping did not subject him to double jeopardy.
    It is clear from the record the kidnapping was not an integral part of the robbery. Defendant points to State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981), in support of his argument that the restraint of the victim was an integral part of the armed robbery. In Irwin, the Court was faced with a defendant who forced his victim, at knifepoint, to the back of a store to open a safe. Id. The Court determined this restraint was necessary to accomplish defendant's purpose of stealing prescription drugs and was thus a technical asportation which did not expose the victim to any greater harm than the robbery itself. Id.
    The case sub judice is distinguishable from Irwin in that here, defendant's purpose was to steal a money bag which was in the passenger compartment of the taxicab. It was not necessary for defendant to confine the victim in the trunk of the vehicle or to keep her confined after he had access to the money bag. Accordingly, the victim, by first being left trapped in the trunk of a fleeing and later abandoned cab, was exposed to a danger greater than the danger from the initial robbery. The kidnapping was a separate and distinct act that was not part of an inherent and integral part of a separate felony. This assignment of error is without merit.
    Similarly, defendant argues the trial court erred by instructing the jury, over defendant's objection, that the restraint of the victim was both for the purpose of facilitatingrobbery with a dangerous weapon and that the kidnapping was a separate, complete act from the robbery, placing defendant in double jeopardy. We disagree.
    In instructing the jury, the trial court used the same conjunctive language used in the indictment. Specifically, the trial court instructed the jury that it must find the confinement of the victim facilitated the robbery and aided defendant's escape and constituted an act separate and apart from the crime of robbery with a dangerous weapon. The jury instruction closely tracked the language of the indictment, which charges alternate theories for first degree kidnapping. Specifically, it charges that defendant kidnapped the victim “by unlawfully confining, restraining, and removing her from one place to another without her consent, for the purpose of facilitating the commission of Robbery with a Dangerous Weapon and for the purpose of facilitating the flight of [defendant] following the commission of Robbery with a Dangerous Weapon.”
    Defendant contends the trial court, by instructing the jury in the conjunctive, required the jury to reach conflicting and irreconcilable verdicts by finding both that the kidnapping facilitated the commission of the robbery and constituted an act separate and distinct from the robbery. Our review of the record leads us to conclude otherwise. The evidence shows that defendant confined the victim with a sharp object to facilitate the commission of the initial robbery. It also shows that defendant kept the victim confined for an extended period of time after therobbery was complete, ultimately leaving her in the trunk of the taxicab. “Although the indictment may allege more than one purpose for the kidnapping, the State has to prove only one of the alleged purposes in order to sustain a conviction of kidnapping.” State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986). This assignment of error is without merit.
    IV. Conclusion
    We reverse the trial court's order granting the State's motion for appropriate relief, vacate the judgment sentencing defendant for the first degree kidnapping conviction, and we reverse the convictions for robbery with a dangerous weapon and first degree kidnapping and remand for new trial.
    New trial.
    Judges McCULLOUGH and STROUD concur.
    Report per Rule 30(e).

Footnote: 1