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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 20 November 2007
STATE OF NORTH CAROLINA
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.
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.
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
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
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
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.
, 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
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
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?
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
(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
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
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,
, 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
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
, 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
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
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.
, 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.
, 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.
, 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.
, 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
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
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
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.
Judges McGEE and SMITH concur.
Report per Rule 30(e).
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