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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1669

NORTH CAROLINA COURT OF APPEALS

Filed: 20 November 2007

STATE OF NORTH CAROLINA

v .                         Guilford County
                            Nos. 05 CRS 23011
RONALD DONALL STANLEY                05 CRS 23012

    Appeal by Defendant from judgments entered 7 June 2006 by Judge Michael E. Helms in Guilford County Superior Court. Heard in the Court of Appeals 29 August 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Richard J. Votta, for the State.

    William D. Spence for Defendant.

    STEPHENS, Judge.

    Ronald Donall Stanley (“Defendant”), also known as Dread, was convicted by a jury of first-degree kidnapping of Mary Ann Pearson, first-degree kidnapping of Frank Lee Pearson, first-degree burglary, and robbery with a dangerous weapon at the 5 June 2006 Criminal Session of the Superior Court of Guilford County, the Honorable Michael E. Helms, Superior Court Judge, presiding. Upon the jury's verdicts, Judge Helms entered judgments, imposing four consecutive sentences as follows: 133 to 169 months for first- degree kidnapping of Mary Ann Pearson; 133 to 169 months for first- degree kidnapping of Frank Lee Pearson; 117 to 150 months for first-degree burglary; and 117 to 150 months for robbery with a dangerous weapon. From these judgments, Defendant appeals.

    I. FACTS
    On the night of 8 September 2004, Frank Lee Pearson (“Mr. Pearson”) and his wife Mary Ann Pearson (“Mrs. Pearson”) (collectively, the “Pearsons”) were at home watching television when the doorbell rang. Mr. Pearson answered the door, and an individual whom he thought he recognized asked to use the telephone. When Mr. Pearson retrieved the phone, the individual, later identified as Tyrone Dukes (“Tyrone”), forced his way into the house at gunpoint. Tyrone then summoned three other men into the house. One of these intruders wore a mask and also carried a gun. The intruders told the Pearsons that their son Carl owed them money.
    The intruders made the Pearsons get down on the floor and tied them up. They took Carl's briefcase, money from Mrs. Pearson's purse, and other items from the residence. They also took the Pearson's Toyota and Acura automobiles. The intruders put Mr. Pearson in the backseat of the Toyota. They had planned to take Mrs. Pearson, but fled when they realized a neighbor across the street was watching them. Mrs. Pearson was left bound and alone in the house. She was able to identify Tyrone and the driver of the Toyota, who was not Defendant. The Pearsons were not able to identify either of the other two men.
    Mr. Pearson was bound, blindfolded, and transported to an unknown location at some considerable distance from his house. He was locked in a vacant, rotting trailer where the rank odor caused him to be sick to his stomach. He is diabetic, and did not haveproper food during his captivity to maintain his health. He did not know what had happened to his wife. One of his captors remained masked whenever he came into the trailer.
    Eventually Mr. Pearson was able to negotiate his release with Tyrone and drove away in his Toyota, which was not starting properly and was low on gas. After making a wrong turn, he was able to find his way back to his home in High Point, two-and-a-half hours later.
    Atari Burke (“Atari”), also known as A.B., testified that he met Defendant through Defendant's cousin, Nicole McCollum (“Nicole”). Atari lived in the High Point area and Defendant lived in the Lumberton area. Atari and Defendant began to discuss possible drug deals. Defendant wanted to buy cocaine from a dealer known as “Big Carl” whom Atari knew in High Point. When Atari told Defendant that Big Carl would not sell the amount of cocaine that Defendant wanted, Defendant said, “Let me get him,” which Atari understood to mean that he wanted to rob Big Carl.
    A week or two before the robbery and kidnappings, Defendant, Nicole, Tyrone, and another person named Chris drove to High Point. They met Atari and cased the Pearson residence where they believed Big Carl kept money and drugs. On the night of the crimes, Defendant, Nicole, Tyrone, and Chris again drove to High Point and met Atari. Defendant had asked Atari to bring gloves and hoodies for them to use, and Atari brought several pairs of gloves which he gave to Defendant. Defendant had a black, semiautomatic pistol.    Atari admitted that he planned the robbery and was supposed to get part of the money from it, but testified that he did not go with the others to the Pearson home on the night of the crimes. Atari also testified that Defendant told him he would call Atari when the robbery was completed and that about thirty minutes after Atari left, Defendant called him and said, “We did it.” Defendant then described in some detail how the robbery had occurred and told Atari they had kidnapped Mr. Pearson.
    Nicole also testified how Defendant and Atari had met through her, at first through telephone conversations. Eventually, she and Defendant drove to High Point where they met Atari and where Defendant and Atari talked at some length. A week or two later, she again drove with Defendant and others to High Point where they met Atari and gathered in a church parking lot. Defendant and the others left in a green Lincoln automobile belonging to Atari and were gone about an hour. The Lincoln returned with Defendant, and she and Defendant drove back to Lumberton. On the drive back, Defendant told her that “A.B. wanted someone hit, and he got hit.”
    Detective Mark McNeill of the High Point Police Department was assigned to investigate the events that had occurred on the night of 8 September 2004 at the Pearson home. During the course of his investigation, Detective McNeill learned of Nicole's identity and, after obtaining warrants charging her with the same offenses charged in this case, arrested her on 17 May 2005. After advising her of her Miranda rights, which she waived, Detective McNeill took Nicole's statement about the incident, writing the statement downas she gave it to him. In her statement, Nicole described how Defendant and Atari met through her and how she and Defendant, together with others, had driven to High Point on two occasions where they met Atari, including the night of the robbery and kidnapping. She also stated that during the ride back to Lumberton that night, Defendant told her that “A.B. wanted the guy hit . . . and he got hit. A couple days later, the guys were talking about how they had gotten a lot of money, but I never heard how much.” At trial, Nicole admitted making the statement to Detective McNeill, and Detective McNeill testified to the contents of Nicole's statement.
II. DISCUSSION
    Defendant first contends the trial court committed plain error in not striking Detective McNeill's testimony regarding the statement given to him by Nicole because the testimony was inadmissible hearsay. “Where, as here, a criminal defendant fails to object to the admission of certain evidence, the plain error analysis . . . is the applicable standard of review.” State v. Ridgeway, 137 N.C. App. 144, 147, 526 S.E.2d 682, 685 (2000) (citation omitted). The term “plain error” does not simply mean obvious or apparent error, but rather is defined as follows:
[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage ofjustice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quotation marks and citations omitted). However, a prerequisite to this Court's engaging in a “plain error” analysis is the determination that the evidentiary matter complained of constitutes error at all. State v. Torain, 316 N.C. 111, 340 S.E.2d 465, cert. denied, 479 U.S. 836, 93 L. Ed. 2d 77 (1986). Then, “[b]efore deciding that an error by the trial court amounts to 'plain error,' the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.” State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). Because we conclude the admission of Detective McNeill's testimony regarding Nicole's statement did not constitute error at all, “plain error” analysis is inappropriate and unnecessary.
    “'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2005). Hearsay is not admissible except as provided by statute or the Rules of Evidence. N.C. Gen. Stat. § 8C-1, Rule 802 (2005). “If a statement is offered for any purpose other than that of proving the truth of the matter stated, it is not objectionable as hearsay.” State v. Irick, 291 N.C. 480, 498, 231 S.E.2d 833, 844 (1977) (citation omitted). A witness'sprior consistent statements may be admitted to corroborate the witness's sworn trial testimony. State. v. McDowell, 329 N.C. 363, 407 S.E.2d 200 (1991). “Corroborative testimony is testimony which tends to strengthen, confirm, or make more certain the testimony of another witness.” State v. Rogers, 299 N.C. 597, 601, 264 S.E.2d 89, 92 (1980). A witness's prior inconsistent statements may be admitted to impeach the witness's credibility. State v. Najewicz, 112 N.C. App. 280, 436 S.E.2d 132 (1993), disc. review denied, 335 N.C. 563, 441 S.E.2d 130 (1994). However, an inconsistent statement may not be used to impeach a witness where the question concerns a matter collateral to the issues. Id.
    The written statement of Nicole, as testified to by Detective McNeill, reads in pertinent part:
About the time we got to Sanford, Dread told me what happened. A.B. wanted the guy hit that he was getting his drugs from, because he had not been getting the right amount, A.B. wanted him hit, and he got hit.

A couple days later, the guys were talking about how they had gotten a lot of money, but I never heard how much.

(Emphasis added) . Nicole testified at trial on direct examination as follows:
Q. Did you have any conversation [with Defendant] about what happened up here?

A. The only thing that was said during the trip back [to Lumberton] was, A.B. wanted someone hit, and he got hit.

Q. What, if anything, did Dread say about getting some money?

A. That wasn't mentioned.

. . . .

Q. Do you remember making a statement to Detective McNeill after your arrest?

A. Yes.

Q. And do you remember telling him that a couple of days after this event, that Dread and Chris were talking about getting a lot of money, but you didn't hear how much?

A. No, that was not said. What was said was that Christopher and Mac came to my aunt's house, telling Dread what occurred.

Q. Well, weren't they all up there when it occurred?

A. Yes.

(Emphasis added) .
    Defendant argues that Nicole's written statement was not admissible as a prior consistent statement because it indicated that Defendant took part in the crime while her trial testimony tended to show that Defendant was not present when the Pearson house was entered. We disagree. We conclude that Nicole's trial testimony was consistent with her written statement because first, her trial testimony clarified that “the guys” she referred to in her written statement were “Christopher and Mac,” correcting the State's interpretation of her written statement that “the guys” referred to “Dread and Chris,” and second, her trial testimony clarified that the conversation concerning money took place at her aunt's house a couple of days after the crimes were committed, and not during the trip back to Lumberton, as the prosecutor's questions suggested. Accordingly, the written statement, as testified to by Detective McNeill, corroborated Nicole's trialtestimony and was properly admissible as a prior consistent statement.
    Defendant further contends, however, that Nicole's written statement was inconsistent with her trial testimony and should not have been allowed in evidence as a prior inconsistent statement because it was used to impeach Nicole's testimony concerning a collateral matter. Collateral matters include testimony contradicting a witness's denial that he made a prior statement when that testimony purports to restate the substance of the statement. State v. Hunt, 324 N.C. 343, 378 S.E.2d 754 (1989).
    Defendant's argument is misguided. Nicole did not deny having made a prior written statement to Detective McNeill; she denied saying what the State's prosecutor alleged in his questioning that she said in her written statement. She then clarified what she had in fact said in her written statement. Her written statement was inconsistent with the State's recollection and interpretation of her written statement, but it was consistent with her own trial testimony. As such, her written statement was not a prior inconsistent statement but, as explained above, was admissible as a prior consistent statement.
    Because we hold that there was no error in the admission of Nicole's statement, there can be no “plain error” as contended. Accordingly, the assignments of error upon which Defendant's arguments regarding Detective McNeill's testimony are based are overruled.



    Defendant next contends the court erred in denying Defendant's motion to dismiss the first-degree kidnapping charges because the evidence was insufficient to establish each element of the crimes.
Specifically, Defendant argues that the State did not prove that Defendant failed to release the Pearsons in a safe place.
    In order to survive a motion to dismiss, the State must present substantial evidence of each essential element of the offense charged. State v. Fritsch, 351 N.C. 373, 526 S.E.2d 451, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Blake, 319 N.C. 599, 356 S.E.2d 352 (1987). The trial court must review the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom. State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978). All evidence admitted during the trial which is favorable to the State must be taken as true, and contradictions or discrepancies therein must be resolved in the State's favor. State v. Agnew, 294 N.C. 382, 241 S.E.2d 684, cert. denied, 439 U.S. 830, 58 L. Ed. 2d 124 (1978). The trial court is concerned only with the sufficiency of the evidence to carry the case to the jury and not with its weight. State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971).
    In order to find the defendant guilty of first-degree kidnapping, the State must prove five elements beyond a reasonable doubt, with the fifth element that the defendant did not release the victim in a safe place. N.C. Gen. Stat. § 14-39 (2005); Statev. Corley, 310 N.C. 40, 311 S.E.2d 540 (1984). An analysis of the fifth element requires a two-pronged inquiry: first, whether the evidence showed that the defendant “released” the victim; and, second, whether a release occured in a “safe place.” See, e.g., State v. Love, 177 N.C. App. 614, 630 S.E.2d 233 (explaining that in order to constitute a “release,” the defendant's conduct must be willful and affirmative and not mere relinquishment of dominion or control over a person), disc. review denied, 360 N.C. 580, 636 S.E.2d 193 (2006); State v. Sakobie, 157 N.C. App. 275, 579 S.E.2d 125 (2003) (explaining that in order to constitute a “safe place,” the particular circumstances surrounding the release must be closely examined).
    In Love, the Court determined there was no “release” of the victims in a safe place when the defendants left them bound and gagged in their home. 177 N.C. App. 614, 630 S.E.2d 233. Similarly, in this case, the evidence established that Mary Ann Pearson was left alone in her house with her hands and feet bound. Additionally, she was hurriedly abandoned rather than willfully released when the kidnappers discovered that a neighbor across the street was watching their activity. This is sufficient evidence for the jury to decide that Mary Ann Pearson had not been “released” in a safe place by Defendant and his accomplices.
    In State v. Sutcliff, 322 N.C. 85, 366 S.E.2d 475 (1988), the Court held that evidence which showed that a kidnap victim was released in the dark, at an intersection one mile from a shopping mall, in an unfamiliar area, when she was disoriented, following asexual assault, was sufficient to support a conclusion that she was not released in a “safe place.” Id. Here, Mr. Pearson was released far from his home, at night, in an unknown location, disoriented as a result of his experience. Furthermore, the car he had to leave in was not starting properly and was low on gas. This is sufficient evidence for the jury to decide that Mr. Pearson had not been released in a “safe place” by Defendant and his accomplices.
    Accordingly, the State presented substantial evidence of each essential element of the first-degree kidnappings, and thus the trial court did not err in denying Defendant's motion to dismiss. We overrule the assignments of error upon which this argument is based.


    Defendant next contends the trial court erred in denying Defendant's motion to dismiss all the charges against him because the testimony of Nicole and Atari, standing alone, was insufficient to establish Defendant's identity as a perpetrator of the crimes. In order to survive a motion to dismiss, the State must also present substantial evidence that the defendant was the perpetrator of the crime charged. Fritsch, 351 N.C. 373, 526 S.E.2d 451. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Blake, 319 N.C. 599, 356 S.E.2d 352. The court must review the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom. Thomas, 296 N.C.236, 250 S.E.2d 204. All evidence admitted during the trial which is favorable to the State must be taken as true, and contradictions or discrepancies therein must be resolved in the State's favor. Agnew, 294 N.C. 382, 241 S.E. 2d 684.
    “Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence.” State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988). If the evidence presented is circumstantial, the court must consider whether a reasonable inference of defendant's guilt may be drawn from the circumstances. Fritsch, 351 N.C. 373, 526 S.E.2d 451. Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then “it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.” State v. Rowland, 263 N.C. 353, 358, 139 S.E.2d 661, 665 (1965).
    “It is well-established that the uncorroborated testimony of an accomplice will sustain a conviction so long as the testimony tends to establish every element of the offense charged.” State v. Keller, 297 N.C. 674, 679, 256 S.E.2d 710, 714 (1979) (citations omitted). “The credibility of witnesses is a matter for the jury except where the testimony is inherently incredible and in conflict with the physical conditions established by the State's own evidence.” State v. Begley, 72 N.C. App. 37, 43, 323 S.E.2d 56, 60 (1984).    Here, Nicole's testimony tended to show Defendant participated in the planning of the crimes; Defendant was with the other perpetrators in the area where the crimes were committed at the time the crimes were committed; and Defendant spoke specifically about the crimes after they were committed. Atari's testimony also tended to show that Defendant helped plan the crimes; Defendant visited the Pearson's house prior to the night the crimes were committed; Defendant was with the other perpetrators in the area where the crimes were committed at the time the crimes were committed; and Defendant called Atari to inform him that the job had been accomplished and gave Atari a detailed account of what had happened.
    Reasonable inferences can be drawn from this testimony that Defendant was a perpetrator of the criminal activity charged. Furthermore, it was not “inherently incredible and in conflict with physical conditions” for Defendant to have participated in the activities charged. Id. Absent such an “inherently impossible” situation, the credibility of the testimony given by Nicole and Atari was a matter for jury determination.
    Thus, the State presented substantial evidence that Defendant was a perpetrator of the crimes charged, and accordingly, the trial court did not err in denying Defendant's motion to dismiss on this ground.


    Finally, Defendant contends the trial court erred in failing to intervene ex mero motu when the prosecutor's closing argumentwas improper, but Defendant's attorney failed to object. Where a defendant fails to object, an appellate court reviews the prosecutor's arguments to determine whether the argument was “so grossly improper that the trial court committed reversible error in failing to intervene ex mero motu to correct the error.” State v. Williams, 317 N.C. 474, 482, 346 S.E.2d 405, 410 (1986). “[O]nly an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.” State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693, cert. denied, 519 U.S. 890, 136 L. Ed. 2d 160 (1996).
    In his closing argument, the prosecutor argued from Nicole's written statement that “he tells her what happened. He says A.B. hit the guy . . . and then as she said, the guys were talking a couple of days later about how much money they got. That was her statement to Detective McNeill.” Nicole's written statement, as testified to by Detective McNeill, was admitted only to corroborate Nicole's trial testimony and thus only to bolster her credibility. However, the District Attorney improperly argued the substance of the written statement as evidence upon which the jury should base a verdict of guilty.
    The Court in State v. Bishop, 343 N.C. 518, 472 S.E.2d 842 (1996), cert. denied, 519 U.S. 1097, 136 L. Ed. 2d 723 (1997), faced a similar issue where the defendant argued the court trialshould have intervened ex mero motu when the prosecutor used evidence admitted for impeachment purposes as substantive evidence in his closing argument. Our Supreme Court found no error in Bishop because the prosecutor's argument was adequately supported by other facts in evidence. Id.
    Here, the questionable portion of the prosecutor's argument related to what Defendant had said to Nicole on their ride back to Lumberton and to a subsequent discussion about money obtained during the robbery. Nicole's testimony at trial described what Defendant had said to her on their ride back to Lumberton and was almost identical to what she had said in her written statement. Furthermore, Atari testified to several conversations he had had with Defendant concerning money received from the crimes. In light of the fact that the prosecutor's argument was supported by evidence other than Nicole's written statement, the argument was not so grossly improper as to require the trial court's ex mero motu intervention. This assignment of error is overruled.
    We hold Defendant received a fair trial, free of error.
    NO ERROR.
    Judges McGEE and SMITH concur.
    Report per Rule 30(e).

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