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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 06 November 2007
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 04 CRS 253063-65
DARRYL VONZELL SULLIVAN, JR.
Appeal by defendant from judgment entered 07 February 2006 by
Judge Jesse B. Caldwell, III in Mecklenburg County Superior Court.
Heard in the Court of Appeals 20 September 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Kay Linn Miller Hobart, for the State.
Geoffrey W. Hosford, for defendant-appellant.
Forcing a victim to strip naked from the waist up increased
her vulnerability and helplessness and was a restraint sufficient
to support a kidnapping conviction, but was not a restraint
inherent in the armed robbery. Without an objection at trial to
evidence that was the subject of a pre-trial suppression motion,
the matter is not preserved for appellate review. The State
presented substantial evidence that the defendant was the
perpetrator of the crimes.
I. Factual Background
On the night of 20 November 2004, at approximately 10 to 10:30
p.m., Jamie Wojtowicz (hereinafter Wojtowicz) was approached by
two men in a parking lot as she was getting out of her car. One
man, later identified as Darryl Vonzell Sullivan, Jr. (hereinafterdefendant) pointed a gun at her. The men stood approximately
four feet from Wojtowicz and her car. The car was parked near a
street light and Wojtowicz was able to see their faces. After
ordering her to get back in the car, the men entered the car.
Defendant got in the back seat and placed the gun to Wojtowicz's
head. The men demanded money. Wojtowicz gave them all the money
she had and offered them her car. They insisted that she had more
The men called her a liar and demanded $1,500.00. They
searched the car for money. Finding none, the men drove her around
Charlotte while they debated what to do. While one man drove the
car, the man identified by Wojtowicz as the defendant, sat in the
back seat, behind the driver, and held the gun to Wojtowicz's head.
The men forced Wojtowicz back to the driver's seat and told her to
drive to a nearby drive-up automated teller machine, where she
withdrew forty dollars. She gave them the money. The man in the
front seat again took over the driving. The men complained of the
heat, and the driver told Wojtowicz to remove her shirts. She
complied, removing her shirts as instructed until she was
completely topless. The gunman later told her to put her shirt
The men instructed Wojtowicz to call her roommate. Telling
her that her car had broken down and needed help, Wojtowicz asked
her to come by herself and bring money to the parking lot of a
CiCi's Pizza. When Wojtowicz and the men arrived at therestaurant's parking area, the men also took her phone. Meanwhile,
Wojtowicz' friend had called 911.
When the police pulled into the parking lot, the two men fled.
Officer York pursued one of the men, whom he kept in sight
throughout the chase. After a 150-200 yard chase, Officer York
apprehended defendant and brought him to the parking lot. Wojtowicz
positively identified defendant as the gunman. The police never
recovered a gun.
Defendant was indicted for first-degree kidnapping, robbery
with a dangerous weapon, and resisting a public officer. Defendant
filed a pretrial motion to suppress both Wojtowicz's identification
of defendant in the parking lot and any proposed in-court
identification by Wojtowitcz. The trial court denied the motion.
The jury returned a verdict of guilty on all charges. The
trial court entered two judgments imposing consecutive active
sentences of 93-121 months on the kidnapping charge and 82-102
months imprisonment on the remaining two charges. Defendant
II. Double Jeopardy
In his first argument, defendant contends that his conviction
for first-degree kidnapping should be vacated because the element
of restraint required to support the kidnapping conviction was not
a separate and complete act, independent of and apart from the
felony of robbery with a dangerous weapon. We disagree.
A person is guilty of kidnapping if he unlawfully confines,
restrains, or removes an individual from one place to anotherwithout their consent, if such confinement, restraint or removal
is for the purpose of: . . .(2) Facilitating the commission of any
felony . . . . N.C. Gen. Stat. § 14-39 (2005).
The North Carolina Supreme Court has stated 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. State v. Fulcher, 294 N.C. 503, 523,
243 S.E.2d 338, 351 (1978). However, since Fulcher, the key
question is whether the kidnapping charge is supported by evidence
from which a jury could reasonably find that the necessary
restraint for kidnapping exposed the victim to greater danger than
that inherent in the underlying felony itself. State v. Muhammad,
146 N.C. App. 292, 295, 552 S.E.2d 236, 237 (2001). Evidence that
a defendant increased the victim's helplessness and vulnerability
beyond what was necessary to enable the robbery or rape is
sufficient to support a kidnapping charge. Id. (citing State v.
Beatty, 347 N.C. 555, 559, 495 S.E.2d 367, 369-70 (1998)).
In this case, Wojtowicz was approached in a parking lot,
ordered to get back into her car, held at gunpoint, and instructed
to give any money she had to the two men. Wojtowicz did as she was
told and offered the men whatever they wanted in order to get
away. Instead of accepting her property and releasing her, the men
instead drove Wojtowicz around Charlotte at gunpoint for
approximately an hour, during which time they told her to remove
her shirts. The forced removal of Wojtowicz's shirts was not an inherent,
inevitable part of the robbery. Partial nudity increased
Wojtowicz's helplessness and vulnerability beyond that necessary
to enable the robbery. Muhammad, 146 N.C. App. at 295, 552 S.E.2d
236 at 237. Under the circumstances, a jury could reasonably find
that the confinement, restraint, or removal was a separate and
complete act independent of and apart from the robbery and exposed
Wojtowicz to greater danger than that inherent in the underlying
felony itself. This argument is without merit.
III. Motion to Suppress
In his second argument, defendant contends that the trial
court erred in denying the pretrial Motion to Suppress the out-of-
court and potential in-court identifications. We disagree.
In order to preserve a question for appellate review, a party
must have presented to the trial court a timely request, objection
or motion, stating the specific grounds for the ruling the party
desired the court to make . . . . N.C.R. App. P. 10(b)(1) (2007).
See State v. Tutt, 171 N.C. App. 518, 615 S.E.2d 688 (2005); State
v. Oglesby,___ N.C. ___, 648 S.E.2d 819 (2007) (holding that the
2003 amendments to N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) (2005),
which purported to eliminate the requirement that the objection be
renewed at trial in order to preserve the issue for appellate
review, were unconstitutional).
After the court denied defendant's pretrial motion to suppress
the identifications, defendant failed to renew the objections attrial. Pursuant to N.C.R. App. P. 10(b)(1), this issue is not
properly preserved for appellate review and is dismissed.
IV. Motion to Dismiss
In his final argument, defendant contends that the trial court
erred in denying his motion to dismiss both felony charges at the
close of the State's evidence and his renewed motion at the close
of all the evidence because there was insufficient evidence to
establish that defendant was in fact the perpetrator. We disagree.
Our standard of review on a motion to dismiss based on
insufficiency of the evidence is the substantial evidence test.
State v. Jones, 110 N.C. App. 169, 177, 429 S.E.2d 597, 602 (1993).
The substantial evidence test requires a determination that there
is substantial evidence (1) of each essential element of the
offense charged, and (2) that defendant is the perpetrator of the
offense. Id., 429 S.E.2d at 602. Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. State v. Smith, 300 N.C. 71, 78-79, 265
S.E.2d 164, 169 (1980). In ruling on a motion to dismiss, the
evidence must be considered by the court in the light most
favorable to the State, and the State is entitled to every
reasonable inference to be drawn from that evidence. State v.
Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387-88 (1984).
Wojtowicz testified that she saw defendant's face on several
occasions. First, when the two men approached, Wojtowicz was able
to see defendant's uncovered face in the light of a street lamp as
he stood approximately four feet away. Second, during the hourspent in the car with the men, Wojtowicz was able to view
defendant's face on multiple occasions as he leaned forward to
speak to his companion or to her, and when the car was stopped to
change drivers. Finally, Wojtowicz viewed defendant's profile and
face as she stood at the automated teller machine.
Upon the officers' arrival at the CiCi's parking lot, Officer
York pursued defendant. Officer York never lost sight of him
during a 200-yard chase. Defendant was the man apprehended by
Officer York and positively identified by Wojtowicz. Taken in the
light most favorable to the State, testimony by the victim and the
officer established that defendant was the man who held a gun to
The State presented substantial evidence that defendant was
the perpetrator of the crimes. The trial court did not err in
denying defendant's Motions to Dismiss. This argument is without
The remaining assignments of error asserted in the record on
appeal, but not argued in the defendant's brief, are deemed
abandoned. N.C.R. App. P. 28(b)(6) (2007).
NO ERROR as to trial;
DISMISSED as to suppression issue.
Judges BRYANT and GEER concur.
Report per Rule 30(e).
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