Appeal by Defendant from judgments dated 31 January 2003 by
Judge Timothy S. Kincaid in Superior Court, Lincoln County. Heard
in the Court of Appeals 25 April 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Gerald K. Robbins, for the State.
J. Clark Fischer for Defendant-Appellant.
Kevin Dale Gray (Defendant) was convicted of second-degree
kidnapping and second-degree rape of S.E.H., the victim. Defendant
was sentenced to forty-six months to sixty-five months in prison
for second-degree kidnapping and a consecutive term of 133 months
to 169 months for second-degree rape. Defendant appeals.
Lieutenant Dean Abernathy (Lieutenant Abernathy) of the
Lincolnton Police Department testified that at approximately 3:30
a.m. on 29 July 2001, he received a telephone call from his
sergeant informing him of an alleged rape. Lieutenant Abernathy
went to Gaston Memorial Hospital, where he spoke with S.E.H.
Lieutenant Abernathy testified that S.E.H. told him that at
approximately 9:30 p.m. on 29 July 2001, she heard a knock at herdoor. She opened the door and saw a white male standing in the
doorway. She told Lieutenant Abernathy that the man forced his way
into the house and pushed her onto a couch in the living room. She
also told him that the man grabbed her from the couch and forced
her into an adjoining bedroom where the man shook her until she
passed out. S.E.H. told Lieutenant Abernathy that when she awoke,
the man was "raping her anally[,]" and that the man continued the
attack, "raping her anally and vaginally."
Lieutenant Abernathy testified that S.E.H. told him that the
man then put her in the bedroom closet for about forty-five
minutes. When the man took her out of the closet, he placed a
pillowcase over her head and took her into the bathroom where he
put her into the shower and said that he "was going to wash the
evidence off." Lieutenant Abernathy testified that S.E.H. told him
that the man then sexually assaulted her again, anally and
vaginally. Lieutenant Abernathy further stated that S.E.H. said
that before the man left her apartment, he took the bed sheets, the
towels he had used in the bathroom, and a bottle of window cleaner.
He used the window cleaner and one of the towels to wipe off the
Lieutenant Abernathy testified that he interviewed S.E.H. a
second time on 30 July 2001 at the Lincolnton Police Department.
Over Defendant's objection, Lieutenant Abernathy testified that in
this second interview, S.E.H. told him that the man told her he was
a criminology major at North Carolina State University, that he
knew computers, and that he could trace telephone calls. S.E.H. also testified at trial and her testimony echoed
Lieutenant Abernathy's in most respects, but did not include
Defendant's statements regarding his college major, knowledge of
computers, or his ability to trace telephone calls. S.E.H. also
testified that when Defendant entered her house he told her he had
a gun and that she "was going to do what he said." S.E.H.
testified that after Defendant forced her to her bedroom, he choked
her with his left arm until "everything went black."
At the close of the State's evidence, Defendant moved to
dismiss the second-degree kidnapping charge. The trial court
denied Defendant's motion.
Defendant testified at trial and denied that any non-
consensual sexual contact had taken place. Defendant also
presented other evidence unrelated to this appeal. At the close of
Defendant's evidence, he renewed his motion to dismiss the
On appeal, Defendant argues (1) that the trial court erred by
denying his motion to dismiss on the grounds that the State failed
to prove an asportation separate and apart from the rape itself;
and (2) that the trial court erred by overruling Defendant's
objection to the admission of portions of Lieutenant Abernathy's
testimony as non-corroborative hearsay. We find no error.
On a motion to dismiss, "the question for the [trial court] is
whether there is substantial evidence (1) of each essential element
of the offense charged, or of a lesser offense included therein,and (2) of [the] defendant's being the perpetrator of such
offense." State v. Powell
, 299 N.C. 95, 98, 261 S.E.2d 114, 117
(1980). If these requirements have been met, then the motion is
properly denied. Id.
"Substantial evidence is 'such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.'" State v. Vause
, 328 N.C. 231, 236, 400 S.E.2d 57,
61 (1991) (quoting State v. Smith
, 300 N.C. 71, 78-79, 265 S.E.2d
164, 169 (1980)). All evidence is to be considered in the light
most favorable to the State and all reasonable inferences are to be
drawn in the State's favor. State v. Irwin
, 304 N.C. 93, 98, 282
S.E.2d 439, 443 (1981). Where there is a reasonable inference of
a defendant's guilt from the evidence, a jury must determine
whether that evidence "convinces them beyond a reasonable doubt of
[the] defendant's guilt." Id.
Defendant contends that the trial court erred by denying his
motion to dismiss the kidnapping charge because there was no
asportation that was not a necessary part of the rape.
N.C. Gen. Stat. § 14-39(a) (2005) provides that kidnapping is
the unlawful confinement, restraint, or removal of a person from
one place to another for the purpose of:
(1) Holding such other person for a ransom or
as a hostage or using such other person as a
(2) Facilitating the commission of any felony
or facilitating flight of any person following
the commission of a felony; or
(3) Doing serious bodily harm to or
terrorizing the person so confined, restrained
or removed or any other person; or
(4) Holding such other person in involuntary
servitude in violation of G.S. 14-43.2.
N.C. Gen. Stat. § 14-39(b) (2005) provides that "[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[.]"
The Supreme Court of North Carolina has stated that the term
"confine," in the context of this statute,
connotes some form of imprisonment within a
given area, such as a room, a house or a
vehicle. The term "restrain," while broad
enough to include a restriction upon freedom
of movement by confinement, connotes also such
a restriction, by force, threat or fraud,
without a confinement. Thus, one who is
physically seized and held, or whose hands or
feet are bound, or who, by the threatened use
of a deadly weapon, is restricted in his
freedom of motion, is restrained within the
meaning of this statute.
State v. Fulcher
, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978).
, our Supreme Court acknowledged that certain felonies,
such as forcible rape, cannot be committed without some restraint
of the victim. Id.
The Court held that a restraint which is an
inherent and inevitable feature of another felony cannot support a
separate kidnapping charge. Id.
Thus, in the context of N.C.G.S.
§ 14-39, the word "restrain" connoted a "restraint separate and
apart from that which is inherent in the commission of the other
However, the Supreme Court also noted that
two or more criminal offenses may grow out of
the same course of action, as where one
offense is committed with the intent
thereafter to commit the other and is actually
followed by the commission of the other (e.g.,
a breaking and entering, with intent to commitlarceny, which is followed by the actual
commission of such larceny). In such a case,
the perpetrator may be convicted of and
punished for both crimes. Thus, there is no
constitutional barrier to the conviction of a
defendant for kidnapping, by restraining his
victim, and also of another felony to
facilitate which such restraint was committed,
provided the restraint, which constitutes the
kidnapping, is a separate, complete act,
independent of and apart from the other
at 523-24, 243 S.E.2d at 351-52.
Defendant contends that any restraint and removal of S.E.H.
constituted only a mere technical asportation and cannot support a
separate kidnapping conviction. In support of this argument,
Defendant cites State v. Ripley
, 360 N.C. 333, 626 S.E.2d 289
(2006). In Ripley
, our Supreme Court held that moving robbery
victims "from one side of [a] motel lobby door to the other was not
legally sufficient to justify [the] defendant's convictions of
second-degree kidnapping." Id.
at 340, 626 S.E.2d at 294. The
Court stated that "in determining whether a defendant's asportation
of a victim during the commission of a separate felony offense
constitutes kidnapping, [a trial court] must consider whether the
asportation was an inherent part of the separate felony offense,
that is, whether the movement was 'a mere technical asportation.'"
at 340, 626 S.E.2d at 293-94. The Court continued:
If the asportation is a separate act
independent of the originally committed
criminal act, a trial court must consider
additional factors such as whether the
asportation facilitated the defendant's
ability to commit a felony offense, or whether
the asportation exposed the victim to a
greater degree of danger than that which is
inherent in the concurrently committed felonyoffense.
, the Court concluded that the defendant's
asportation of the victims after his accomplice drew a firearm "was
an inherent part of the robbery [the] defendant and his accomplices
were engaged in." Id.
Therefore, the Court vacated certain of the
defendant's convictions for second-degree kidnapping.
Defendant also cites State v. Ray
, 149 N.C. App. 137, 560
S.E.2d 211 (2002), aff'd per curiam
, 356 N.C. 665, 576 S.E.2d 327
(2003). In Ray
, the defendant was charged with murder, kidnapping,
and robbery with a dangerous weapon. Id.
at 138, 560 S.E.2d at
213. The State's evidence tended to show that the defendant used
a utility knife to restrain the victim in order to rob him. Id.
138-42, 560 S.E.2d at 213-15. This Court held that there was not
sufficient evidence that the defendant restrained the victim for
any other purpose than to rob him. Id.
at 149, 560 S.E.2d at 219.
Thus, the Court found it was error for the trial court to submit
the kidnapping charge to the jury. Id.
We conclude that the present case is distinguishable from both
. Unlike the defendants in Ripley
restrained S.E.H. beyond what was necessary to commit the rape.
When viewed in the light most favorable to the State, the testimony
of Lieutenant Abernathy and S.E.H. tended to show that Defendant
forced his way into S.E.H.'s house, told S.E.H. he had a gun and
she would do what he said, and that he then straddled S.E.H. on the
living room couch. Defendant then forced S.E.H. to walk from the
living room to the bedroom where he choked her until she passedout. This constituted an asportation separate and independent of
that inherent in the rape. Defendant could have committed the rape
in the living room, but instead forced S.E.H. into the bedroom,
choking her and causing her to pass out in the process. As this
Court noted in State v. Walker
, 84 N.C. App. 540, 543, 353 S.E.2d
245, 247 (1987):
Asportation of a rape victim is sufficient to
support a charge of kidnapping if the
defendant could have perpetrated the offense
when he first threatened the victim, and
instead, took the victim to a more secluded
area to prevent others from witnessing or
hindering the rape. Such asportation is
separate and independent of the rape, is
removal for the purpose of facilitating the
felony of rape, and is, therefore, kidnapping
pursuant to N.C. Gen. Stat. § 14-39.
, the defendant threatened the victim with physical harm,
forced the victim into a car, and then drove the car to a more
secluded area behind a church building before committing the rape.
This Court noted that the "[d]efendant could have perpetrated
the crime when he first stopped the car, but instead decided to
take greater precautions to prevent others from witnessing or
hindering his crimes." Id.
Because of this additional action, the
defendant's kidnapping charge was properly submitted to the jury.
In the present case, Defendant took similar actions that were
separate and independent from the rape in order to facilitate its
commission. Though Defendant could have committed the rape in the
living room, he instead removed S.E.H. to the bedroom. This
movement of S.E.H. from the living room to the bedroom constitutedthe "remov[al] from one place to another" of S.E.H. without her
consent in order to "facilitat[e] the commission of [a] felony" as
proscribed by N.C.G.S. § 14-39. Therefore, we conclude that the
trial court did not err by denying Defendant's motion to dismiss
the second-degree kidnapping charge.
Defendant next argues that the trial court erred by allowing
Lieutenant Abernathy to testify that S.E.H. said that Defendant had
told her he was a criminology major at North Carolina State
University and that he could trace telephone calls. Defendant
argues that this testimony was introduced as advance corroboration
of S.E.H.'s testimony, but because she did not ultimately testify
to these statements, they were inadmissible hearsay. During
Lieutenant Abernathy's testimony, he testified that S.E.H. told him
that her attacker stated that he was a criminology major at North
Carolina State University, that he knew computers, and that he
could trace phone calls.
In support of his argument that this testimony was improperly
allowed, Defendant relies on State v. Frogge
, 345 N.C. 614, 481
S.E.2d 278 (1997). In Frogge
, a witness testified about statements
made by the defendant while the two were incarcerated together.
at 615-16, 481 S.E.2d at 278-79. The witness made pretrial
statements to police which contradicted the witness' trial
testimony in at least three instances. Id.
at 616, 481 S.E.2d at
279. Our Supreme Court held that "a 'witness's prior statements as
to facts not referred to in his trial testimony and not tending toadd weight or credibility
to it are not admissible as corroborative
at 618, 481 S.E.2d at 280 (quoting State v. Ramey
318 N.C. 457, 469, 349 S.E.2d 566, 574 (1986)).
Defendant's reliance on Frogge
is misplaced, however, since
S.E.H.'s prior statements were not contradictory and did in fact
add weight to her testimony at trial. "New information contained
within the witness' prior statement, but not referred to in [the
witness'] trial testimony, may also be admitted as corroborative
evidence if it tends to add weight or credibility to that
testimony." State v. McDowell
, 329 N.C. 363, 384, 407 S.E.2d 200,
212 (1991). Further, our Supreme Court held that a witness' prior
statements were properly admitted, noting that "[w]hile the earlier
statements contained slight variations and some additional
information, they contained nothing directly contradicting the
witness' trial testimony, as was the case in . . . Frogge
, 351 N.C. 192, 204, 524 S.E.2d 332, 341, cert. denied
v. North Carolina
, 531 U.S. 867, 148 L. Ed. 2d 110 (2000). The
witness' "prior statements were substantially similar to and tended
to strengthen and confirm [the witness'] trial testimony," and were
therefore properly admitted for the purpose of corroboration. Id.
In the present case, S.E.H.'s out-of-court statements to
Lieutenant Abernathy did not contradict her testimony at trial, as
was the case in Frogge
. Rather, her pretrial statements regarding
Defendant's criminology background and ability to trace calls
strengthened and confirmed her trial testimony. Like the contested
testimony in both Gell
, S.E.H.'s out-of-courtstatements contained slight variations and some additional
information. Accordingly, we hold that the trial court did not err
by admitting Lieutenant Abernathy's testimony regarding S.E.H.'s
pretrial statements for the purpose of corroboration.
Defendant fails to argue his remaining assignments of error
and we deem them abandoned pursuant to N.C.R. App. P. 28(b)(6).
Judges LEVINSON and JACKSON concur.
Report per Rule 30(e).
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