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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 June 2007
STATE OF NORTH CAROLINA
RYAN LEWIS LITTLE 04CRS24457-60
Appeal by defendant from judgments entered 6 October 2004 by
Judge Edwin G. Wilson, Jr., in Guilford County Superior Court.
Heard in the Court of Appeals 11 April 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Thomas J. Pitman, for the State.
Sue Genrich Berry for defendant appellant.
Defendant appeals from a jury verdict finding defendant guilty
of robbery with a dangerous weapon and four counts of first-degree
kidnapping. We remand for resentencing.
Ryan Lewis Little (defendant) was indicted for robbery with
a dangerous weapon and four counts of first-degree kidnapping. The
case was tried before a jury at the 27 September 2004 Session of
the Superior Court of Guilford County.
The State presented evidence at trial which tended to show the
following: On 31 August 2003, Kerry Donovan (Donovan) was working
as the shift manager of a Pizza Hut. Corvonna Moore (Moore) was
working as the cook and Kirsten Jones (Jones) was working as theserver. An off-duty cook, Colina Barnett (Barnett) was at the
restaurant getting a free drink.
At about noon, a male entered the restaurant holding a black
revolver. The man was black, approximately 5'11 tall, and had a
medium complexion. He wore a hat and gloves with the fingers cut
out, and covered part of his face with an orange bandana. Donovan
was able to see some of the man's facial features. She estimated
the robber was standing three to five feet from her during the
robbery. In open court Donovan identified defendant as the robber
with 75 to 85 percent certainty.
The robber ordered Donovan to open the safe. He ordered
Moore, Jones and Barnett to move together to a location in the
kitchen and to stay there. He ordered the women to place their
phones and belongings on the counter.
The robber handed Donovan a yellow plastic bag and told her to
put all the contents of the safe into it. He pointed the revolver
directly at Donovan as she was emptying the safe. He took all the
contents of the safe, which included cash and checks.
The robber locked all four women in the bathroom and propped
a highchair against the door to block it. Before blocking the
door, he threatened to kill them if they tried to come out of the
bathroom. Jones had her cell phone in her pocket. After hearing
the robber leave the restaurant, Donovan borrowed Jones' cell phone
and attempted to call 911. When she got a busy signal, she called
her general manager instead. The women remained in the bathroomfor about 10 minutes until the police opened the door and let them
Rita Little Hoover (Hoover), defendant's cousin, was
employed as a customer service representative at the Pizza Hut.
Hoover testified that on one occasion prior to 31 August 2003,
defendant told Hoover he was going to rob the restaurant. Hoover
did not report the statement to anyone, taking it as a joke. Hoover
also testified that defendant called her the evening before she was
to testify at his trial. He told her that she needed to tell the
court that she told him to rob the restaurant.
During the evening of 31 August 2003, Tikelya Johnson
(Johnson), Hoover's daughter, saw defendant and other relatives
at a relative's home. Defendant admitted to Johnson and the other
people present that he committed the robbery and discussed it in
detail. She observed defendant with a number of personal checks,
all made payable to Pizza Hut.
Ashley Childress (Childress) was defendant's girlfriend.
She testified that she spent the morning of 31 August 2003 with
defendant at a hotel to celebrate her birthday and that they
checked out of the room around noon that day. Though she knew
defendant had been charged with robbery, she did not come forward
presenting a possible alibi for defendant to law enforcement or
anyone else until she testified at his trial. Childress presented
no documentary proof of renting the room or any records of paying
Defendant contends the trial court was without jurisdiction to
try him for the offenses of first-degree kidnapping because the
indictments were insufficient in that they did not allege that each
named victim was not released in a safe place. We agree.
The North Carolina Rules of Appellate Procedure provide that
[a]n assignment of error is sufficient if it directs the attention
of the appellate court to the particular error about which the
question is made, with clear and specific record or transcript
references. N.C. R. App. P. 10(c)(1). Here, defendant did not
include either a transcript or record reference with this
assignment of error; however, the assignment is detailed enough
that we are able to determine where in the record the argued error
The established rule is that an indictment will not support
a conviction for a crime unless all the elements of the crime are
accurately and clearly alleged in the indictment. State v.
Jerrett, 309 N.C. 239, 259, 307 S.E.2d 339, 350 (1983). The
Legislature may prescribe a form of indictment sufficient to allege
an offense even though not all of the elements of a particular
crime are required to be alleged. Id. The Legislature has not,
however, established a short-form indictment for kidnapping.
Accordingly, the general rule governs the sufficiency of the
indictment to charge the crime of kidnapping. Id.
There are two degrees of kidnapping. N.C. Gen. Stat. § 14-39
(2005). The elements set forth in subsection (a) of N.C. Gen.Stat. § 14-39 are required for both degrees of kidnapping. The
difference between the two degrees of kidnapping is found in N.C.
Gen. Stat. § 14-39(b). 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 . . .. Id. However, [i]f 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 . . .. Id.
In Jerrett, the North Carolina Supreme Court held [i]n order
for the State to properly indict a defendant for first-degree
kidnapping, the State must allege the applicable elements of . . .
subsection (b). Jerrett, 309 N.C. at 261, 307 S.E.2d at 351.
Here, the indictments included all of the necessary elements of
N.C. Gen. Stat. § 14-39(a), however, the indictments did not
include any language from N.C. Gen. Stat. § 14-39(b). Thus, the
indictments in the instant case were imperfect in regard to a
charge of first-degree kidnapping.
The North Carolina Supreme Court has authored an opinion in an
analogous case. See State v. Bell, 311 N.C. 131, 316 S.E.2d 611
(1984). In Bell, the indictments failed to allege any one of the
elements of first-degree kidnapping as set out in N.C. Gen. Stat.
§ 14-39(b), but the North Carolina Supreme Court determined the
indictments were sufficient to support a conviction for second-
degree kidnapping. Id. at 137, 316 S.E.2d at 614. We note that
although Bell was decided under a previous version of N.C. Gen.Stat. § 14-39, subsection (b) is substantially the same. See N.C.
Gen. Stat. § 14-39(b) (2005); Bell, 311 N.C. at 136-37, 316 S.E.2d
at 614. Therefore, as in Bell, the jury's verdicts must be
considered verdicts of guilty of kidnapping in the second degree.
We vacate the judgments imposed upon the verdicts of guilty of
kidnapping in the first degree and remand the cases to superior
court for judgments and resentencing as upon verdicts of guilty of
kidnapping in the second degree. Bell, 311 N.C. at 137, 316 S.E.2d
We disagree with defendant's remaining contentions. First, the
trial court did not err in overruling defendant's objections
regarding the testimony of Eric Miller, a robbery detective with
the Greensboro Police Department. Defendant asserts that some of
Miller's testimony was hearsay. However, even if some of Miller's
testimony was hearsay, we are not convinced that there is a
reasonable possibility that a different result would have been
reached at trial had this statement not been admitted because of
the amount of competent testimony offered at trial by the State.
State v. Abraham
, 338 N.C. 315, 356, 451 S.E.2d 131, 153 (1994)
(admission of hearsay not prejudicial where State proffered strong
and corroborated eyewitness testimony of defendant's guilt). For
example, Donovan testified that she stood 3 to 5 feet from the
robber during the robbery. She identified defendant as the robber
with 75 to 85 percent accuracy. In addition, Johnson testified that
she was present in a house a few hours after the robbery whendefendant produced the stolen property from the Pizza Hut and
admitted to committing the robbery.
Next, the trial court did not err by allowing testimony by
Filicia Bledsoe and David Little regarding defendant's possession
of guns and stolen property. Again, we are not convinced that
there is a reasonable possibility that a different result would
have been reached at trial had this statement not been admitted
because of the amount of competent testimony offered at trial by
the State. Id.
The trial court did not err by denying defendant's motion to
dismiss at the close of the evidence. Upon reviewing a trial
court's denial of a motion to dismiss, we view the evidence in the
light most favorable to the State, giving the State the benefit of
all reasonable inferences. State v. Hart
, ___ N.C. App. ___, ___,
633 S.E.2d 102, 108, disc. review denied as to additional issues
360 N.C. 651, 637 S.E.2d 182 (2006), aff'd in part, rev'd in part
, ___ N.C. ___, ___ S.E.2d ___ (filed 4 May 2007). We
then consider de novo
whether there is substantial evidence (1) of
each essential element of the offense charged,
or of a lesser offense included therein, and
(2) of defendant's being the perpetrator of
such offense. If so, the motion is properly
denied. If the evidence is sufficient only to
raise a suspicion or conjecture as to either
the commission of the offense or the identity
of the defendant as the perpetrator of it, the
motion should be allowed.
Here, defendant argues there was no evidence that the kidnap
victims were not released in a safe place. However, in
interpreting our kidnapping statute, our Supreme Court has stated
that [w]hile it is true that G.S. 14-39(b) does not expressly
state that defendant must voluntarily
release the victim in a safe
place, we are of the opinion that a requirement of 'voluntariness'
is inherent in the statute. Jerrett
, 309 N.C. at 262, 307 S.E.2d
at 351. Our Supreme Court went on to say that the safe place
requirement of the statute implies a conscious, willful action on
the part of the defendant to assure that his victim is released in
a place of safety. Id.
Viewing the evidence in the light most
favorable to the State, we determine that defendant did not
voluntarily release the victims in a safe place. Prior to ordering
the victims into the bathroom, he threatened to kill them if they
tried to break out. Then he blocked the door to the bathroom.
Finally, defendant was not denied the effective assistance of
counsel when his trial counsel (1) elected not to request an
instruction on the defense of alibi and (2) elected not to request
an instruction on the lesser included offense of second-degree
kidnapping. When a reviewing court can determine at the outset
that there is no reasonable probability that in the absence of
counsel's alleged errors the result of the proceeding would have
been different, then the court need not determine whether counsel's
performance was actually deficient. State v. Braswell,
553, 563, 324 S.E.2d 241, 249 (1985).
Here, there is no reasonable
probability that in the absence of counsel's alleged errors theresult of the proceeding would have been different. First,
regarding the lesser included offense instruction, we are remanding
this case for resentencing as upon verdicts of guilty of kidnapping
in the second degree; thus, defendant's argument on this point is
moot. Regarding the alibi instruction, the witness providing the
alibi testimony claimed that she and defendant checked out of a
hotel about noon on the day of the robbery; however, she stated her
mother paid for the room in cash and she had no documentary proof
to support her claim. In light of defendant's admission of guilt
to Johnson, defendant's admission to Hoover that he wanted to rob
the restaurant, Donovan's eyewitness identification of defendant,
and other substantial evidence presented by the State, we conclude
there is no reasonable probability the result of the proceeding
would have been different had an alibi instruction been given.
Accordingly, the judgments entered on defendant's first-degree
kidnapping conviction are vacated. We remand this case to the
superior court for resentencing as upon verdicts of guilty of
kidnapping in the second degree.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).
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