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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-1240


Filed: 3 July 2007


v .                         Lincoln County
                            Nos. 01 CRS 04156 & 04158

    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.

    McGEE, Judge.

    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 door.
    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 kidnapping charge.
    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 shield; or
        (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). In Fulcher, 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 felony." Id. 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 felony.

Id. 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.'" Id. 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.

Id. In Ripley, 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. at 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 Ripley and Ray. Unlike the defendants in Ripley and Ray, Defendant 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.

In Walker, 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. Id. 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. Id.
    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. Id. 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 evidence.'" Id. 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." State v. Gell, 351 N.C. 192, 204, 524 S.E.2d 332, 341, cert. denied, Gell 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 and McDowell, 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).
    No error.
    Judges LEVINSON and JACKSON concur.
    Report per Rule 30(e).

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