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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 2 October 2007
STATE OF NORTH CAROLINA
Nos. 06 CRS 052077
HERBERT EARL WARREN, JR. 06 CRS 052083
Appeal by defendant from judgment entered 3 November 2006 by
Judge Alma L. Hinton in Halifax County Superior Court. Heard in
the Court of Appeals 19 September 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Alvin W. Keller, Jr., for the State.
Mary March W. Exum, for defendant-appellant.
Herbert Earl Warren, Jr., (defendant) appeals from judgment
entered after a jury found him to be guilty of assault by pointing
a gun pursuant to N.C. Gen. Stat. § 14-34 and second degree
kidnapping pursuant to N.C. Gen. Stat. § 14-39. We find no error.
A. State's Evidence
1. Glover's Testimony
The State's evidence tended to show Etta Sherree Glover
(Glover) and defendant were involved in a romantic relationship
from October 2004 to March 2006. Defendant and Glover resided
together at Glover's grandmother's house during part of this time.
Defendant and Glover were told that Glover's grandmother's housewas going to be sold. Defendant and Glover moved into a house on
Monroe Street in Roanoke Rapids, North Carolina. They resided
there along with friends, Yvette Jackson (Jackson) and Kyle Green
Glover testified she and defendant suffered an abusive
relationship. On the night of 25 or 26 March 2006, defendant and
Glover argued. Defendant exited the house and went to a club with
a friend. Glover traveled to a different club in Virginia with
Jackson and another female friend. They stayed at that club until
1:00 or 1:30 a.m., and then traveled to the same club in Rocky
Mount, North Carolina where defendant was present. Defendant was
standing in the parking lot of the club in Rocky Mount when Glover
and the other women arrived. Glover testified that defendant was
yelling and brandishing a silver handgun.
Jackson, Green, and another friend left the club while Glover
stayed behind, hoping to calm defendant. Glover was able to calm
defendant down for awhile, but eventually they began arguing again.
Glover told defendant that she was leaving the club and found a
friend who would give her a ride.
Glover was about to enter her friend's vehicle when defendant
placed his gun into her ribs and told her she would leave with him.
Glover testified she entered the vehicle with defendant because she
was scared he would shoot her. Glover and defendant rode in the
backseat of the vehicle while another man drove them to the
Sunshine Motel in Rocky Mount. Defendant sat next to Glover withhis gun on his lap. After a two minute drive, they arrived at the
Sunshine Motel around 4:00 or 5:00 a.m.
Once inside the motel room, Glover asked defendant why he was
acting like that. Glover testified defendant was quiet at
moments, but would start yelling and screaming and waving the gun
around, threatening her, her family, and her children. Glover also
testified defendant hit her leg and arm in front of the other
people inside the room.
Glover testified defendant hit her every twenty to thirty
minutes. Defendant eventually went to sleep. Glover could not
sleep because she was too scared. After checkout the next morning,
defendant and Glover were driven to their house on Monroe Street in
While walking onto the porch, defendant started yelling at
Glover because he could not find his cellular telephone. Glover
believed she could escape from defendant while he looked for his
cellular telephone and ran to the backyard. Defendant caught up
with her in the backyard and put his gun to her head and stated, I
can kill you right now. Defendant smacked Glover on the back of
her head and knocked her onto the ground. Glover testified she
begged defendant to allow her to leave, but he refused. Defendant
pulled Glover up off the ground, told her to go inside, and pushed
her inside the house. Once inside the house, defendant let go of
Glover's arm, and she was able to move about freely. Glover
believed defendant still possessed the gun, but was unsure of its
location. Glover secretly grabbed a cordless telephone on the way to the
bathroom, telephoned her mother and asked to speak with her father,
Chester Proctor (Proctor). Glover told her mother it was an
emergency, she was scared, defendant had a gun, and asked for her
father to come and pick her up immediately. Glover testified she
did not telephone the police because she was scared.
Glover informed defendant her father was coming to pick her up
and defendant calm[ed] down a little bit. With his gun in his
hands, defendant informed Glover she was not going to leave with
her father. Glover responded, Well, I made him come all this way.
At least let him go ahead and take my stuff to their house. . . .
Defendant stated, That's fine. Glover testified she secretly
planned to escape by getting into her father's van and leaving with
While Glover waited for her father to arrive, defendant
continued to threaten Glover and her family. Glover testified that
she took defendant's threats seriously because he had admitted to
her he had burned property and the interior of a shed she owned.
When Glover's father arrived, defendant allowed Glover to take
her belongings out to her father's van. As Glover packed her
belongings into the van, defendant walked out onto the porch with
his gun in his hand. On her first trip to the van, Glover told her
father, [W]hen I bring this next box, I am jumping in, and just
pull off. On her next trip to the van, Glover got in, closed the
door, and her father drove away. Proctor also testified and
corroborated Glover's testimony. On 27 March 2006, Glover's mother telephoned Glover and told
her defendant had burned down her grandmother's house also located
on Monroe Street in Roanoke Rapids. However, no one witnessed
defendant burn the house. Glover contacted Detective Jeffrey Wayne
Baggett (Detective Baggett), went to the police station, and told
him what she knew about both the above events and her grandmother's
house being burned.
2. Detective Baggett's Testimony
Detective Baggett testified he interviewed Glover at 10:30
a.m. on 27 March 2006 and showed her to the Magistrate's office.
Glover spoke with the Magistrate and requested that defendant be
arrested for her safety. Defendant was arrested and transported to
the police station. Detective Baggett testified defendant was very
irate, agitated, and he could not be interviewed. Detective
Baggett began to testify about a statement defendant made about
burning a shed. Counsel for defendant objected, and a voir dire
hearing was conducted outside the presence of the jury.
During voir dire, Detective Baggett testified defendant went
on a tangent while being processed at the station and stated that
the charges were bulls--t and that Glover was trumping s--t up.
Detective Baggett responded, [w]ell, you need to stop setting fire
to her house and her shed. Defended stated, I didn't set fire to
no house or shed. The shed ain't burned up anyway. The fire kept
going out. After a brief pause, Detective Baggett testified
defendant then stated, It must have been a crackhead smoking in
there and set the paper on fire. They sold the shed anyway. Detective Baggett also testified defendant had not been given
Miranda warnings at the time these statements were made. When
asked why he responded to defendant's statement, Detective Baggett
testified, [b]ecause I was getting tired of listening to his
statements. . . .I wasn't really looking for a response. What I
was looking for was to get him to just be quiet is what I was
looking for. When directly asked whether he knew his statement
may elicit an incriminating response, Detective Baggett testified,
I did not know. I was looking for him just to be quiet.
The trial court overruled defendant's objection and Detective
Baggett testified before the jury. Detective Baggett also
testified he had originally charged defendant with burning the
shed, but those charges were ultimately dismissed. At the close of
the State's evidence, defendant moved to dismiss the charges
against him. The trial court denied defendant's motion.
B. Defendant's Evidence
Defendant called LaPage Foster (Foster), who testified she
was present at the club and the motel with defendant and Glover.
Foster stated she did not witness any physical violence between
defendant and Glover either at the club or the motel. Foster did
see a silver colored gun, but only when defendant took it from
Glover. Foster believed defendant gave the gun to another male.
On 3 November 2006, a jury found defendant guilty of assault
by pointing a gun and second degree kidnapping. The trial court
sentenced defendant to a minimum of thirty-four months and a
maximum of fifty months imprisonment. Defendant appeals.
Defendant argues the trial court erred by: (1) denying his
motion to suppress testimony made by him while he was in custody
and without being read his Miranda rights and (2) denying his
motion to dismiss the charge of second degree kidnapping.
III. Motion to Suppress
A. Standard of Review
The standard of review for a motion to suppress is whether
the trial court's findings of fact are supported by the evidence
and whether the findings of fact support the conclusions of law.
State v. Cockerham, 155 N.C. App. 729, 736, 574 S.E.2d 694, 699
(citations and quotations omitted), disc. rev. denied, 357 N.C.
166, 580 S.E.2d 702 (2003). The court's findings 'are conclusive
on appeal if supported by competent evidence, even if the evidence
is conflicting.' Id. (quoting State v. Buchanan, 353 N.C. 332,
336, 543 S.E.2d 823, 826 (2001)). [T]he trial court's conclusions
of law must be legally correct, reflecting a correct application of
applicable legal principles to the facts found. State v.
Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997).
1. Miranda Warnings
Defendant argues his Miranda rights were violated and the
trial court erred by denying his motion to suppress Detective
Baggett's testimony about an incriminating statement. We disagree.
Whether a defendant was subject to a custodial interrogation
is a question of law reviewable by this Court de novo. State v.Patterson, 146 N.C. App. 113, 120, 552 S.E.2d 246, 253, disc. rev.
denied, 354 N.C. 578, 559 S.E.2d 246 (2001). 'Miranda warnings
are required only when a defendant is subjected to custodial
interrogation.' State v. Johnston, 154 N.C. App. 500, 502, 572
S.E.2d 438, 440 (2002) (quoting Patterson, 146 N.C. App. at 121,
552 S.E.2d at 253 (2001)). When examining the circumstances
surrounding an alleged custodial interrogation, courts focus on the
suspect's perceptions rather than the intent of law enforcement
officers. State v. Golphin, 352 N.C. 364, 406, 533 S.E.2d 168, 199
(2000) (citing Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed.
2d 297, 308 (1980)), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305
The term 'interrogation' is not limited to express
questioning by law enforcement officers, but also includes 'any
words or actions on the part of the police . . . that the police
should know are reasonably likely to elicit an incriminating
response from the suspect.' Golphin, 352 N.C. at 406, 533 S.E.2d
at 199 (quoting Innis, 446 U.S. at 301, 64 L. Ed. 2d at 308).
However, because 'the police surely cannot be held
accountable for the unforeseeable results of their words or
actions, the definition of interrogation can extend only to words
or actions on the part of police officers that they should have
known were reasonably likely to elicit an incriminating response.'
Id. at 406, 533 S.E.2d at 199 (quoting Innis, 446 U.S. at 301-02,
64 L. Ed. 2d at 308)).
Factors that are relevant to the determination
of whether police should have known theirconduct was likely to elicit an incriminating
response include: (1) the intent of the
police; (2) whether the practice is designed
to elicit an incriminating response from the
accused; and (3) [a]ny knowledge the police
may have had concerning the unusual
susceptibility of a defendant to a particular
form of persuasion . . . .
State v. Fisher, 158 N.C. App. 133, 142-43, 580 S.E.2d 405, 413
(2003) (quoting Innis, 446 U.S. at 302, 64 L. Ed. 2d at 308.).
On 27 March 2006, police officers arrested defendant and
transported him to the police station. Defendant was
uncooperative, cursing, irate, and agitated with the police and
Glover. Defendant was not interviewed at this time.
Detective Baggett testified that while being processed at the
police station defendant went on a tangent stating that the charges
were false. Detective Baggett responded, [w]ell, you need to stop
setting fire to her house and her shed. Defendant replied, I
didn't set fire to no house or shed. The shed ain't burned up
anyway. The fire kept going out. Defendant then stated, It must
have been a crackhead smoking in there and set the paper on fire.
They sold the shed anyway.
Defendant had not been given any Miranda warnings at the time
he made these statements. Detective Baggett testified he responded
to defendant's statement because he was tired of listening to
defendant and was not looking for a response. Detective Baggett
stated he did not know whether his statement would elicit an
The trial court properly overruled defendant's objection to
Detective Baggett's testimony. Although clearly in custody,defendant was not being interrogated within the meaning of Miranda
and Innis. Detective Baggett testified he did not interview
defendant at the time due to his unruly behavior. Detective
Baggett posed no questions to defendant and nothing tends to show
Detective Baggett knew or should have known that his statement was
likely to elicit an incriminating response. Id. In addition, no
evidence in the record suggests Detective Baggett had any knowledge
of defendant's unusual susceptibility . . . to a particular form
of persuasion. Id. Detective Baggett's statement was not
designed to elicit an incriminating response.
2. Harmless Error
Even if this Court were to find merit in defendant's assertion
that his statements were obtained in violation of his Miranda
rights, the violation would be reviewed for harmless error. This
Court has held:
Evidence admitted in violation of Miranda is
subject to harmless error analysis. . .
However, before a federal constitutional error
can be held harmless, the court must . . .
declare a belief that it was harmless beyond a
reasonable doubt. . . The burden is on the
State to demonstrate that the error was
harmless beyond a reasonable doubt.
State v. Johnston, 154 N.C. App. 500, 503, 572 S.E.2d 438, 441
(2002) (quotations omitted). The State argues any error was
harmless beyond a reasonable doubt because the charges associated
with the burning of the shed were ultimately dismissed, as
Detective Baggett testified at trial. Defendant also denied any
knowledge of or setting the house or shed on fire. Presuming defendant was subjected to custodial interrogation
when he made the statements regarding the fire in the shed, we hold
any error in the admission of those statements was harmless beyond
a reasonable doubt. This assignment of error is overruled.
IV. Motion to Dismiss
Defendant argues the trial court erred by denying his motion
to dismiss the charge of second degree kidnapping. We disagree.
A. Standard of Review
This Court has stated:
The standard of review for a motion to dismiss
in a criminal trial is:
Upon defendant's motion for dismissal, the
question for the 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
defendant's being the perpetrator of such
offense. If so, the motion is properly denied.
Evidence is substantial if it is relevant and
adequate to convince a reasonable mind to
accept a conclusion. If substantial evidence,
whether direct, circumstantial, or both,
supports a finding that the offense charged
has been committed and that the defendant
committed it, the motion to dismiss should be
denied and the case goes to the jury. But, if
the evidence is sufficient only to raise a
suspicion or conjecture as to either the
commission of the offense or the identity of
the defendant as the perpetrator of it, the
motion should be allowed.
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 anywitness's credibility. It is concerned only
with the sufficiency of the evidence to carry
the case to the jury. Ultimately, the court
must decide whether a reasonable inference of
defendant's guilt may be drawn from the
State v. Ellis, 168 N.C. App. 651, 656-57, 608 S.E.2d 803, 807
(2005) (internal citations and quotations omitted).
Defendant argues insufficient evidence shows Glover was
confined or terrorized or that he intended to terrorize her. We
N.C. Gen. Stat. § 14-39 (2005) provides, in pertinent part:
(a) Any person who shall unlawfully confine,
restrain, or remove from one place to another,
any other person 16 years of age or over
without the consent of such person . . . shall
be guilty of kidnapping if such confinement,
restraint or removal is for the purpose of:
. . . .
(3) Doing serious bodily harm to or
terrorizing the person so confined, restrained
or removed or any other person . . . .
The term confine connotes some form of imprisonment within a given
area, such as a room, a house or a vehicle. State v. Fulcher, 294
N.C. 503, 523, 243 S.E.2d 338, 351 (1978).
Terrorizing is defined as more than just putting another in
fear. It means putting that person in some high degree of fear, a
state of intense fright or apprehension. State v. Davis, 340 N.C.
1, 24, 455 S.E.2d 627, 639 (citations and quotations omitted),
cert. denied, 15 U.S. 846, 133 L. Ed. 2d 83 (1995). In determining the sufficiency of the evidence, the test is
not whether subjectively the victim was in fact terrorized, but
whether the evidence supports a finding that the defendant's
purpose was to terrorize the victim. Id. [T]he victim's
subjective feelings of fear, while not determinative of the
defendant's intent to terrorize, are relevant. State v. Baldwin,
141 N.C. App. 596, 604, 540 S.E.2d 815, 821 (2000). The presence
or absence of the defendant's intent or purpose to terrorize may be
inferred by the factfinder from the circumstances surrounding the
events constituting the alleged crime. Id. at 605, 540 S.E.2d at
Here, the State's evidence tended to show Glover's confinement
by defendant and her state of fright began at approximately 4:00
a.m. in Rocky Mount and ended about 2:00 p.m. in Roanoke Rapids on
26 March 2006. At approximately 4:00 a.m., defendant prevented
Glover from leaving a club with her friends by placing a gun into
her ribs and insisting she leave with him. Glover was forced into
another vehicle by defendant.
At approximately 4:45 a.m., defendant forced Glover into a
motel room in Rocky Mount, where he threatened her family, hit her
with enough force to leave bruises, and grabbed her by the leg when
she attempted to escape the room. At approximately 11:00 a.m.,
defendant forced Glover into a vehicle to ride to their home in
Glover attempted to escape by running away after she and
defendant reached the house on Monroe Street. Defendant caught andstopped Glover in the backyard, placed the gun to her head, called
her vulgar names, threatened to kill her, struck her on the head,
and knocked her to the ground. Defendant pulled Glover up off the
ground and pushed and pulled her into the house. Glover asked to
be released ten to fifteen times, but defendant prevented her from
leaving the house.
While inside the house, defendant told Glover, on at least
four occasions, that she could not leave the house and continued to
threaten her and brandish the gun. Glover testified she believed
that defendant had immediate access to the gun throughout this
period. Glover finally escaped by contacting her parents and
having her father come to her aid.
Viewed in the light most favorable to the State, substantial
evidence of confinement and terror exists to prove second degree
kidnapping. The determination of defendant's guilt or innocence of
second degree kidnapping was a question of fact for the jury. The
trial court properly denied defendant's motion to dismiss the
charge of second degree kidnapping. This assignment of error is
The trial court properly denied defendant's motion to
suppress Detective Baggett's testimony and motion to dismiss the
second degree kidnapping charge. Defendant received a fair
trial, free from prejudicial errors he preserved, assigned, and
Judges MCGEE and ELMORE concur.
Report per Rule 30(e).
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