STATE OF NORTH CAROLINA
v
.
Lenoir County
No. 05 CRS 52402
SHERRONE J. GREENE
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Kelly L. Sandling, for the State.
Richard E. Jester, for defendant-appellant.
JACKSON, Judge.
On 1 June 2005, Brian Canady (“Canady”) was working at the
Wireless Company on 211B West Vernon Avenue in Kinston, North
Carolina. Canady was the only person working in the store that
day. The store had a register in the front of the store, and a
safe in the back. In the store with Canady that day were customers
Christy Moore (“Moore”) and Bennie Dixon (“Dixon”). While Canady,
Dixon and Moore were in the store, Sherrone Greene (“defendant”)
came in through the front door and inquired about a Nextel I860,
the first Nextel camera phone. Canady told him that he did not
have any in stock at the time. At that time, the Nextel I860 phone
sold for $299.00. Canady testified that those types of phones were
expensive, and the store normally did not keep them in stock. Canady noticed that defendant was a black male who was
approximately five foot six inches to five foot seven inches in
height, had a thin build and was wearing a gray sweatshirt with a
hood and blue jeans. After inquiring about the phone, defendant
spoke to Canady less than a minute or two before leaving the store.
Approximately one minute passed before defendant returned to
the store and again stated that he wanted a phone. Canady asked
defendant to sit down, and Canady gave him a profile sheet to fill
out while Canady went to the back of the store. Canady went to the
back of the store because that is where the cell phones were stored
and he continued to work on Dixon's phone. As Canady was returning
from the back of the store and coming to the front, he saw that
defendant had a pistol pointed at customers Dixon and Moore, and at
him. Defendant instructed all three of them to go to the back of
the store. Once getting to the back of the store with the victims,
defendant cocked the gun. Upon cocking the gun, Canady stated that
a shell came out of it. Defendant instructed Canady that he wanted
all of the Nextel phones the store had, which was a total of seven
phones.
Canady stated that he followed defendant's instruction to get
the phones, and he grabbed a bag and began placing the Nextel
phones into the bag. While getting the phones, Canady heard
defendant tell him, Dixon and Moore that he wanted their I.D.'s and
cell phones. Canady did not have his cell phone on him that day
and his I.D. was at the front of the store. Dixon gave defendant
his I.D. and his phone. Moore's purse, along with her I.D. andcell phone, was located in the front of the store, so she did not
give defendant any items.
After taking the Nextel phones in the back of the store,
defendant ordered Canady to go out to the front of the store and
put all of the money from the cash register in the bag.
Approximately $150.00 was taken out of the cash register and placed
in the bag. While Canady was retrieving the money in the front
from the cash register, defendant held customers Dixon and Moore in
the back of the store with the gun still pointed at them. Moore
testified that while she and Dixon were in the back of the store
with defendant, they were required to face the wall and place their
hands up on the wall.
After Canady had finished placing the money from the cash
register in the bag, defendant left Moore and Dixon in the back
room and came to the front of the store to get the bag with the
phones and money from Canady. After getting the money and phones,
defendant ran out of the store with the bag and got into a white
Chevrolet Corsica. Canady testified that including the phones and
money from the cash register, the store lost a total of $2,250.00
due to defendant's robbery.
Defendant subsequently was arrested for the robbery on 16 June
2005. On 31 October 2005, defendant was indicted on two counts of
robbery with a dangerous weapon, two counts of second degree
kidnapping, attempted robbery with a dangerous weapon, and
possession of stolen property. Following a trial by jury,
defendant was found guilty of all charges, and was sentenced to sixconsecutive terms of imprisonment on 30 March 2006. Defendant
appeals from his convictions.
Defendant first contends the trial court erred in denying his
motion to dismiss the charges of kidnapping the two customers,
based upon an insufficiency of the evidence. Defendant argues
there was insufficient evidence of a kidnapping, or restraint,
separate and apart from the armed robbery. He asserts that any
moving of the two customers was inherent in the commission of the
robbery, thus the moving of the victims is insufficient to sustain
the separate convictions for kidnapping.
In reviewing a defendant's motion to dismiss based upon
insufficiency of the evidence,
The trial court must 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. Evidence is substantial if it is
relevant and adequate to convince a reasonable
mind to accept a conclusion. In considering a
motion to dismiss, the trial court must
analyze the evidence in the light most
favorable to the State and give the State the
benefit of every reasonable inference from the
evidence. The trial court must also resolve
any contradictions in the evidence in the
State's favor. The trial court does not weigh
the evidence, consider evidence unfavorable to
the State, or determine any witness'
credibility.
State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001)
(internal citations and quotation marks omitted), cert. denied, 535
U.S. 1114, 153 L. Ed. 2d 162 (2002).
In order to survive a motion to dismiss a charge of second
degree kidnapping, the State must present substantial evidence thatthe defendant 1) unlawfully confined, restrained, or removed from
one place to another, 2) a person sixteen years of age or older, 3)
without that person's consent, 4) the confinement, restraint, or
removal was for the purpose of a) facilitating the commission of
any felony, or b) doing serious bodily injury to the person
confined, restrained or removed, and 5) the person was released in
a safe place by defendant and was not seriously injured or sexually
assaulted. N.C. Gen. Stat. § 14-39(a), (b) (2005). It is well
established that in order to satisfy the requirements for proving
kidnapping, “'the restraint, which constitutes the kidnapping,
[must be] a separate, complete act, independent of and apart from
the other felony.'” State v. Ripley, 360 N.C. 333, 338, 626 S.E.2d
289, 292 (2006) (quoting State v. Fulcher, 294 N.C. 503, 524, 243
S.E.2d 338, 352 (1978)). As the Court noted in Fulcher,
It is self-evident that certain felonies
(e.g., forcible rape and armed robbery) cannot
be committed without some restraint of the
victim. We are of the opinion, and so hold,
that G.S. 14-39 was not intended by the
Legislature to make a restraint, which is an
inherent, inevitable feature of such other
felony, also kidnapping so as to permit the
conviction and punishment of the defendant for
both crimes. To hold otherwise would violate
the constitutional prohibition against double
jeopardy. Pursuant to the above mentioned
principle of statutory construction, we
construe the word “restrain,” as used in G.S.
14-39, to connote a restraint separate and
apart from that which is inherent in the
commission of the other felony.
Fulcher, 294 N.C. at 523, 243 S.E.2d at 351.
Defendant analogizes his case to that in State v. Irwin, 304
N.C. 93, 282 S.E.2d 439 (1981), in which our Supreme Court heldthat a defendant's moving of a store clerk, at knife-point, from
the front of the store to the back of the store was not sufficient
to constitute a separate kidnapping conviction. The Court held
that the clerk's removal to the back of the store
was an inherent and integral part of the
attempted armed robbery. To accomplish
defendant's objective of obtaining drugs it
was necessary that either Mr. Stewart or Ms.
Sasser go to the back of the store to the
prescription counter and open the safe.
Defendant was indicted for the attempted armed
robbery of both individuals. Ms. Sasser's
removal was a mere technical asportation and
insufficient to support conviction for a
separate kidnapping offense.
Id. at 103, 282 S.E.2d at 446. Defendant contends his removal of
the customers from the front of the store to the back is analogous
to the removal of the clerk in Irwin. Defendant argues that the
customers were moved to the back of the store, along with the
clerk, to the location where the object of the robbery was located,
and thus their removal was an inherent part of the attempted armed
robbery. Defendant contends the customers were not exposed “to
greater danger than that inherent in the armed robbery itself, nor
[were the victims] subjected to the kind of danger and abuse the
kidnapping statute was designed to prevent.” Id. at 103, 282
S.E.2d at 446. We disagree with defendant's contentions.
In the instant case, the object of the robbery was not just
the cell phones located in the store's back room. Defendant also
demanded that the customers give him their identification cards and
personal cell phones. These objects were not located in the back
of the store, as the customers had these items on their personswhile they were located in the front of the store. In fact,
Moore's purse, which contained the items defendant demanded, was
not located in the back of the store with her. Therefore, the
instant case is analogous to the facts and circumstances found in
State v. Davidson, 77 N.C. App. 540, 335 S.E.2d 518 (1985). In
Davidson, we held that when the victims were robbed in a location
in which none of the property serving as the object of the robbery
was located, the removal did not constitute an inherent and
integral part of the robbery, and was in fact a separate course of
conduct sufficient to sustain both a kidnapping and armed robbery
conviction. Id. at 543, 335 S.E.2d at 520. In Davidson, we
reaffirmed that an individual's removal from one place to another
may be considered a separate course of conduct when the removal is
“designed to remove the victims from the view of passersby who
might have hindered the commission of the crime.” Id.; see also
State v. Newman, 308 N.C. 231, 239-40, 302 S.E.2d 174, 181 (1983).
In the instant case, defendant could have accomplished his
robbery of Moore and Dixon in the front of the store, where the
objects he wished to steal were located. It was unnecessary for
him to remove the customers to the back of the store, at gun point,
and his doing so only served the purpose of “remov[ing] the victims
from the view of passersby who might have hindered the commission
of the crime.” Davidson, 77 N.C. App. at 543, 335 S.E.2d at 520.
The facts of the instant case are different from those in Irwin,
where the store clerk's removal from the front of the store was
necessary as the object of the robbery, the prescription drugs, waslocated in the area to which the defendant took the clerk. This is
not the case with defendant's removal of Moore and Dixon.
As there was sufficient evidence presented showing that
defendant's removal of the two customers from the front of the
store to the back room, at gun point, was not an inherent and
integral part of his robbery of them, we hold the trial court did
not err in denying defendant's motion to dismiss the kidnapping
charges.
Finally, defendant contends the trial court erred, and was not
impartial to all parties, when it suggested and allowed an
amendment to defendant's indictment for armed robbery and attempted
armed robbery.
During defendant's trial, the following discussion occurred
outside the presence of the jury:
THE STATE: The State has an amendment to make
to the indictment.
THE COURT: Okay, let's hear it.
THE STATE: Your Honor, as to the indictment
on count number two, count number four and
count number five, each of which allege that
this defendant committed the offense of
attempted armed -- one is -- count two is
attempted armed robbery. In the body of the
robbery, Your Honor, if that the defendant
committed this possession and use of a
firearm, we have alleged in the body of the
indictment that it is a shotgun of an
undetermined caliber. Your Honor, that should
be handgun of undetermined caliber.
The Court is, of course, aware the
indictment only requires that firearm be used,
that shotgun just qualifies that so the change
does not prejudice the defendant in any way so
we are asking to have leave to amend all three
of those counts to reflect handgun instead of
shotgun.
THE COURT: Okay. [Defense Counsel], before I
entertain your argument let's create the
record further.
Over the lunch break when I was reviewing
the file I noticed that the indictments didn't
seem to correspond with some of the evidence
that was presented by testimony and I took the
liberty of preparing part of the jury
instruction over the lunch break.
And when [the Assistant District
Attorney] came in, I asked him if he was
proceeding under a theory that a shotgun was
used in this armed robbery. And, [Defense
Counsel], when you came in I believe I had the
same discussion with you and we had a bench
conference and at that bench conference I
indicated to the District Attorney that I
thought he might have some inconsistent
wording in his bill of indictment.
He indicated to the Court and albeit in
your presence at that time that he was going
to seek to amend the indictment and then I
asked you if you thought there was some fatal
variance, I certainly would be willing to hear
from you and give you an opportunity to argue
to the Court how the Court allowing [the
State] to amend would cause you any prejudice
in defending your client.
Do you think that is an accurate
statement as to what took place?
DEFENSE COUNSEL: That is an accurate
statement, Judge, and we would just object for
the record without argument, Your Honor.
THE COURT: Okay. Anything else that either
of you would like to say?
THE STATE: No, sir.
THE COURT: The Court is of the opinion that
while the indictment indicates a shotgun, [the
Assistant District Attorney] has indicated
that it appears to be an oversight and should
have been worded as a handgun. The Court
can't see what the prejudice is and does not
determine that there is any fatal variance in
the indictment. It does allege a firearm.
I don't believe there is any prejudice in
the defense. At least [Defense Counsel] has
not been able to articulate any to the Courtand without further objection the Court would
allow the motion to amend.
Anything else before we bring in this
jury?
THE STATE: No, sir.
DEFENSE COUNSEL: No, sir, Your Honor.
Defendant contends the trial court's telling the District Attorney
that the indictment did not correspond with the evidence, the
recommendation that the indictment be amended, and the subsequent
allowing of the amendment constitute obvious signs of a partial
trial court. Defendant's argument on appeal is two-fold, and first
we must address his contention that the trial court failed to
remain impartial.
It is well-established in this State that “[t]he law imposes
on the trial judge the duty of absolute impartiality.” Nowell v.
Neal, 249 N.C. 516, 520, 107 S.E.2d 107, 110 (1959).
The trial judge also has the duty to supervise
and control a defendant's trial, including the
direct and cross-examination of witnesses, to
ensure fair and impartial justice for both
parties. “Furthermore, it is well recognized
that a trial judge has a duty to question a
witness in order to clarify his testimony or
to elicit overlooked pertinent facts.”
State v. Fleming, 350 N.C. 109, 126, 512 S.E.2d 720, 732 (citations
omitted), cert. denied, 528 U.S. 941, 145 L. Ed. 2d 274 (1999).
When reviewing a trial judge's comments and actions to determine if
they cross into the realm impermissible acts, we must apply a
totality of the circumstances test. Id. (citing State v.
Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995)). A trial
judge's broad discretionary power to supervise and control thetrial “will not be disturbed absent a manifest abuse of
discretion.” State v. Goldman, 311 N.C. 338, 350, 317 S.E.2d 361,
368 (1984).
In defendant's case, we hold the trial judge's comments to the
District Attorney regarding the inconsistency between the
indictments and the evidence presented fell within the judge's duty
to “supervise and control a defendant's trial.” Fleming, 350 N.C.
at 126, 512 S.E.2d at 732. The trial judge's comments did not
amount to signs of partiality, but instead the trial judge provided
both parties with an opportunity to present argument to the court,
which defense counsel declined to do beyond the objection. The
trial court's comments, and the State's argument and motion were
made outside of the presence of the jury, thus the jury did not
witness any actions which could be seen as partial on the part of
the trial judge. During the course of defendant's trial, the trial
judge assisted both the State and defense counsel, including an
instance in which the trial court interrupted the State during its
cross examination of defendant, asked defense counsel if he wished
to object, and then sustained defense counsel's objection.
We see nothing in the transcript to indicate that the trial
court failed to comply with its duty to remain impartial, and we
hold the trial court's comments regarding the inconsistency between
the indictments and the evidence did not constitute an abuse of
discretion.
Next, we must determine whether the trial court erred in
allowing the State to amend defendant's armed robbery and attemptedarmed robbery indictment. Defendant's indictment for the charge of
attempted armed robbery, and the two charges of armed robbery, each
included the statement that “[t]he defendant committed this act by
means of an assault, consisting of having in his possession and
threatening the use of a firearm, a shotgun of undetermined
caliber, whereby the life of [the victim] was threatened and
endangered.” The evidence presented at trial showed that at the
time of the robbery, defendant had a handgun in his possession,
with which he threatened the victims and held them at gun point,
and that he did not have a shotgun as alleged in the indictment.
North Carolina General Statutes, section 15A-923(e) (2005)
provides that “[a] bill of indictment may not be amended.” This
provision has been interpreted to mean that “a bill of indictment
may not be amended in a manner that substantially alters the
charged offense.” State v. Silas, 360 N.C. 377, 380, 627 S.E.2d
604, 606 (2006). “In determining whether an amendment is a
substantial alteration, we must consider the multiple purposes
served by indictments, the primary one being 'to enable the accused
to prepare for trial.'” Id. (quoting State v. Hunt, 357 N.C. 257,
267, 582 S.E.2d 593, 600 (2003)).
In the instant case, defendant was indicted on one count of
attempted armed robbery, and two counts of armed robbery. North
Carolina General Statutes, section 14-87(a) provides that
Any person or persons who, having in
possession or with the use or threatened use
of any firearms or other dangerous weapon,
implement or means, whereby the life of a
person is endangered or threatened, unlawfully
takes or attempts to take personal propertyfrom another or from any place of business,
residence or banking institution or any other
place where there is a person or persons in
attendance, at any time, either day or night,
or who aids or abets any such person or
persons in the commission of such crime, shall
be guilty of a Class D felony.
N.C. Gen. Stat. § 14-87(a) (2005). Thus, one of the required
elements of any armed robbery or attempted armed robbery charge is
that the defendant had in his possession a “firearm[] or other
dangerous weapon” at the time of the attempted unlawful taking of
another's personal property, and that he threatened the life of the
person with that “firearm[] or other dangerous weapon.” As there
is nothing in the statute requiring that the type of firearm or
other dangerous weapon specifically be identified, we hold the
trial court's amendment of defendant's indictment did not
constitute error. Defendant's indictment alleged that at the time
of the robbery offenses, he had in his possession, and threatened
use of, a firearm. It was unnecessary that the indictment specify
that the firearm used was a shotgun. Defendant's indictment
alleged all of the required elements and facts necessary for
defendant to prepare his defense for trial. Thus, we hold the
amendment to the indictment did not constitute a substantial
alteration which prejudiced defendant, and therefore the trial
court did not err.
No error.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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