STATE OF NORTH CAROLINA
v. Guilford County
Nos. 05 CRS 85656-69
DWIGHT LEE FORNEY, II
Attorney General Roy Cooper, by Assistant Attorney General
Douglas W. Corkhill, for the State.
C. Scott Holmes for defendant.
ELMORE, Judge.
Dwight Lee Forney (defendant) appeals from judgments entered
after a jury found him guilty of second degree kidnapping and
robbery with a dangerous weapon. We find no error.
Prior to trial, the State filed a motion to join the trials of
defendant and Fredrick Cason Pratt (Pratt), alleging that each “is
individually guilty of each offense charged based on the theories
of acting in concert or aiding and abetting.” Defendant objected
to the State's motion for joinder and filed a motion to sever the
defendants' trial. The trial court allowed the State's motion for
joinder.
The State's evidence at trial tended to show that in the early
morning hours of 22 July 2006, Marcus Archie was driving twofriends from the parking lot of Club Atlantis to another parking
lot when two men approached the car. The man armed with a gun,
Pratt, walked up to the driver's side of the car and pointed the
gun at Archie. Defendant, who did not have a gun, stood by the
passenger door. Archie and the two passengers were ordered out of
the vehicle and they complied. Pratt told Archie to empty his
pockets. Archie took out his driver's license, cell phone, and
debit card and dropped them to the ground. Pratt picked up the
debit card and ordered Archie to pick up the cell phone and
license. Pratt then walked to the other side of the car, where
defendant and the two passengers stood. Pratt said, “where your
money at[,]” then hit one of the passengers in the head with the
gun. Pratt turned to Archie and said, “get back in the car, you're
about to drive us around.” Defendant sat in the back passenger
seat and Pratt sat in the front passenger seat. Pratt ordered
Archie to drive to the bank. During the drive, Pratt told Archie
that the gun was loaded and defendant said, “this is real.” Pratt
hit Archie in the head with the gun after Archie drove past the
bank.
Upon arriving at the bank, Pratt asked Archie for the debit
card. Archie reminded Pratt that the debit card was taken from him
at the parking lot. Defendant searched the back of the car for the
debit card while Pratt searched the front of the car, but they were
unable to find it. Pratt told Archie to “[p]ull away from here.
You going to drive us somewhere.” Pratt struck Archie's head with
the gun four or five more times, resulting in an open wound thatrequired five stitches. Archie drove back to Club Atlantis as
Pratt requested. When they arrived at the club and no one was
there, Pratt told Archie to call and find out where his two friends
were. The two friends related to Archie that they were at a Texaco
station. Pratt told Archie, “go to the place where [your friends
are]. . . . We going to get your friends now.” Pratt then took
Archie's gold teeth, earrings, and a CD, and handed the items back
to defendant. As Archie drove to the Texaco station, the police
stopped the vehicle. The two friends walked over to the scene and
identified defendant and Pratt as the robbers.
After the State rested, defendant renewed his motion to sever,
which the trial court denied. Defendant testified at trial that
Pratt had pointed the gun at him earlier that evening and demanded
that defendant accompany him to Club Atlantis. Defendant
testified that he was an unwilling participant in the robbery; that
Pratt ordered him, along with Archie, to get into the car; that he
was afraid of Pratt; and that he had asked Pratt to let him out of
the car, but Pratt ignored him. Defendant further testified that
Pratt tossed Archie's gold teeth and earrings into the back seat
and did not hand the items to him.
Pratt testified that when he approached the car in the Club
Atlantis parking lot, he told Archie that someone was trying to
kill him and to get them out of there. Pratt denied robbing
Archie, denied going to the bank, and could not explain how the
earrings, gold teeth, and CD got into the back seat of the car. Healso denied pointing a gun at defendant and did not recall
defendant asking to go home.
The trial court denied defendant's motion to sever at the
close of all the evidence. Upon a finding of defendant's guilt,
the trial court sentenced him to active terms of imprisonment.
Defendant appeals.
Defendant first contends that the trial court erred by
granting the State's motion for joinder and denying his motion for
severance. Defendant asserts that he and Pratt had antagonistic
defenses and, therefore, the trial should have been severed. We
disagree.
N.C. Gen. Stat. § 15A-927(c)(2) requires the trial court to
deny joinder of the defendants for trial whenever it is necessary
to promote or achieve a fair determination of guilt or innocence.
N.C. Gen. Stat. § 15A-927(c)(2) (2005). “Whether defendants should
be tried jointly or separately [] is a matter addressed to the
sound discretion of the trial judge.” State v. Rasor, 319 N.C.
577, 581, 356 S.E.2d 328, 331 (1987) (citing State v. Slade, 291
N.C. 275, 229 S.E.2d 921 (1976)). “A trial court's ruling on such
questions of joinder or severance, however, is discretionary and
will not be disturbed absent a showing of abuse of discretion.”
State v. Carson, 320 N.C. 328, 335, 357 S.E.2d 662, 666-67 (1987).
Our Supreme Court has stated:
[T]he existence of antagonistic defenses alone
does not necessarily warrant severance. The
test under section 15A-927(c)(2) is whether
the conflict in the defendants' respective
positions at trial is such that, considering
all of the other evidence in the case, theywere denied a fair trial. Thus the focus is
not on whether the defendants contradict one
another but on whether they have suffered
prejudice.
Rasor, 319 N.C. at 582-83, 356 S.E.2d at 332 (internal citations
omitted). Here, Pratt's defense was not antagonistic to defendant.
Pratt's defense was that a robbery did not take place. Pratt did
not make any assertion regarding defendant's guilt or implicate
defendant. Defendant suffered no prejudice by Pratt's defense. We
hold that the trial court did not abuse its discretion in
overruling defendant's objection to the joinder of these trials.
Defendant next contends that the trial court erred by not
dismissing the kidnapping charge. He asserts that the restraint
alleged in the kidnapping charge was an inherent part of the
robbery with a dangerous weapon. Specifically, defendant argues
that the restraint of Archie was a “mere technical asportation” and
defendant's conviction on both charges violates his constitutional
protection from double jeopardy. We disagree.
The standard for ruling on a motion to dismiss “is whether
there is substantial evidence (1) of each essential element of the
offense charged and (2) that defendant is the perpetrator of the
offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814
(1990). Substantial evidence is that relevant evidence which “a
reasonable mind might accept as adequate to support a conclusion.”
State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585
(1994). In ruling on a motion to dismiss, the trial court must
consider all of the evidence in the light most favorable to the
State, “and the State is entitled to all reasonable inferenceswhich may be drawn from the evidence.” State v. Davis, 130 N.C.
App. 675, 679, 505 S.E.2d 138, 141 (1998). “Any contradictions or
discrepancies arising from the evidence are properly left for the
jury to resolve and do not warrant dismissal.” State v. King, 343
N.C. 29, 36, 468 S.E.2d 232, 237 (1996).
N.C. Gen. Stat. § 14-39 defines kidnapping, in relevant part,
as:
(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, or any
other person under the age of 16 years without
the consent of a parent or legal custodian of
such person, shall be guilty of kidnapping if
such confinement, restraint or removal is for
the purpose of:
(1) Holding such other person for a ransom or
as a hostage or using such other person as a
shield; or
(2) Facilitating the commission of any felony
or facilitating flight of any person following
the commission of a felony . . . .
N.C. Gen. Stat. § 14-39 (2005).
“One who . . . by the threatened
use of a deadly weapon, is restricted in his freedom of motion, is
restrained within the meaning of this statute.” State v. Fulcher,
294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). “[A] person cannot
be convicted of kidnapping when the only evidence of restraint is
that 'which is an inherent, inevitable feature' of another felony
. . . .” State v. Beatty, 347 N.C. 555, 559, 495 S.E.2d 367, 369
(1998) (quoting Fulcher, 294 N.C. at 523, 243 S.E.2d at 351). The
court may consider whether the defendant's acts place the victim in
greater danger than is inherent in the other offense, or subjectthe victim to the kind of danger and abuse that the kidnapping
statute was designed to prevent. State v. McNeil, 155 N.C. App.
540, 546, 574 S.E.2d 145, 149 (2002). The court also considers
whether defendant's acts “cause additional restraint of the victim
or increase the victim's helplessness and vulnerability.” State v.
Smith, 359 N.C. 199, 213, 607 S.E.2d 607, 618, cert. denied, 546
U.S. 850, 163 L. Ed. 2d 121 (2005).
Our Supreme Court recently considered under what circumstances
the movement of victims in a robbery or attempted robbery is a mere
technical asportation. State v. Ripley, 360 N.C. 333, 340, 626
S.E.2d 289, 293-94 (2006). In Ripley, the evidence showed that the
victims were ordered at gunpoint to enter the hotel lobby, and once
inside, were ordered to the floor, searched, and robbed. The
Court concluded that the “asportation of the [victims] from one
side of the motel lobby door to the other was not legally
sufficient to justify defendant's convictions of second-degree
kidnapping.” Id. at 340, 626 S.E.2d at 294.
However, in State v. Davidson, 77 N.C. App. 540, 543, 335
S.E.2d 518, 520 (1985), this Court considered whether there was
sufficient evidence of kidnapping when victims of a robbery were
forced to walk from the front of the store to dressing rooms in the
rear, before the store and the victims were robbed. Id. The Court
noted that as none of the property that was the object of the
robbery was kept in the dressing room, removal of the victims was
not an inherent and integral part of the robbery, but rather wasdone to remove the victims from view. Id. at 543, 335 S.E.2d at
520.
Here, the movement of Archie from the Club Atlantis parking
lot to the Texaco gas station after Archie's gold teeth, earrings,
and CD were taken was not necessary to commit the robbery. Rather,
Archie was ordered to drive defendant and Pratt around so that they
could then rob Archie's friends. Further, Archie being confined to
the car resulted in Archie being struck on the head and requiring
stitches. This additional restraint increased Archie's
helplessness and vulnerability. Therefore, taking the evidence in
the light most favorable to the State, a jury could properly infer
that defendant and Pratt's restraint of Archie was not an inherent
part of the robbery. The trial court properly denied defendant's
motion to dismiss the kidnapping charge. This assignment of error
is overruled.
Finally, defendant contends that the trial court erred by not
declaring a mistrial ex mero motu when he had an emotional outburst
on the witness stand. While testifying on direct examination,
defendant started crying and stated, “My co-defendant just
threatened me.” The trial judge then stated, “Sustained.
Disregard that, ladies and gentlemen.” On appeal, defendant argues
that the comment, although struck, was so prejudicial as to require
a mistrial.
N.C. Gen. Stat. § 15A-1063 provides: “Upon . . . his own
motion, a judge may declare a mistrial if: (1)[i]t is impossible
for the trial to proceed in conformity with law . . . .” N.C. Gen.Stat. § 15A-1063 (2005). “This statute allows a judge . . . to
grant a mistrial where he could reasonably conclude that the trial
will not be fair and impartial.” State v. Lyons, 77 N.C. App. 565,
566, 335 S.E.2d 532, 533 (1985). “An order of a mistrial on a
motion of the court is 'addressed to the sound discretion of the
trial judge, and his ruling on the motion will not be disturbed on
appeal absent a gross abuse of that discretion.'” Id. at 566, 335
S.E.2d at 533-34 (quoting State v. Malone, 65 N.C. App. 782, 785,
310 S.E.2d 385, 387 (1984)).
Here, the trial court immediately issued curative instructions
by directing the jury to disregard defendant's comment. Further,
defendant now attempts to cite as error the admission of his own
comment during direct examination. However, “[a] defendant may not
complain of prejudice 'resulting from [his] own conduct.'” State
v. Gay, 334 N.C. 467, 485, 434 S.E.2d 840, 850 (1993) (citation
omitted); N.C. Gen. Stat. § 15A-1443(c) (2005). “Such 'invited
error' does not merit relief.” Gay, 334 N.C. at 485, 434 S.E.2d at
850 (citation omitted). The trial court therefore did not abuse
its discretion in failing to declare a mistrial ex mero motu. This
assignment of error is overruled.
No error.
Judges WYNN and BRYANT concur.
Report per Rule 30(e).
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