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STATE OF NORTH CAROLINA v.
ANTONIO LAMARQUISA RIPLEY
FILED: 3 MARCH 2006
Kidnapping--second-degree--asportation of robbery victims from an entranceway into a
motel lobby--inherent part of robbery with dangerous weapon
The Court of Appeals did not err by vacating defendant's four convictions of
second-degree kidnapping arising from the asportation of robbery victims from an entranceway
into a motel lobby during the commission of a robbery with a dangerous weapon, because
defendant's actions constituted a mere technical asportation of the victims which was an inherent
part of the commission of robbery with a dangerous weapon.
Justice TIMMONS-GOODSON did not participate in the consideration or
decision of this
Appeal pursuant to N.C.G.S. § 7A-30(2) from the
decision of a divided panel of the Court of Appeals, ___ N.C.
App. ___, 617 S.E.2d 106 (2005), vacating nine of defendant's
convictions for second-degree kidnapping and reversing and
remanding in part judgments entered 19 March 2004 by Judge Jack
W. Jenkins in Superior Court, Onslow County. Heard in the
Supreme Court 13 December 2005.
Roy Cooper, Attorney General, by
M. Elizabeth Guzman,
Assistant Attorney General, for the State-appellant.
Thomas R. Sallenger for defendant-appellee.
This case requires us to determine whether the
asportation of robbery victims from an entranceway into a motel
lobby during the commission of a robbery with a dangerous weapon
was an independent act legally sufficient to justify defendant's
separate convictions of kidnapping. Because we find defendant's
actions did not constitute a separate, complete act independentof the commission of the robbery with a dangerous weapon, we
affirm the Court of Appeals' opinion.
On 18 November 2003, defendant Antonio Lamarquisa
Ripley was indicted by the Onslow County Grand Jury for fifteen
counts of second-degree kidnapping, nine counts of robbery with a
dangerous weapon, three counts of attempted robbery with a
dangerous weapon, and one count of assault by pointing a gun.
Defendant and four accomplices committed the alleged offenses
during a series of robberies on or about 30 May 2003.
The facts of these offenses are described in detail in
the Court of Appeals' opinion below. State v. Ripley, ___ N.C.
App. __, 617 S.E.2d 106 (2005). Thus, we highlight only the
facts most relevant to a determination of the issue now under
consideration--the asportation of four of the victims. The
State's evidence presented at trial consisted of testimony from
numerous robbery victims and two of defendant's four accomplices.
This testimony tended to show the following: On 30 May 2003,
defendant, then thirty-two years old, assembled a group of four
accomplices--Jonathan Battle, Jamar McCarthur, Karon Joye, and
Sekou Alexander--all of whom were under the age of eighteen.
Defendant then transported the group from Wilmington to
Jacksonville, North Carolina. The group committed their first
robbery with a dangerous weapon at the Hampton Inn in
Jacksonville sometime after 9:00 p.m. Defendant then relocated the group to the Extended Stay
America Motel, also located in Jacksonville. Defendant remained
in the vehicle while McCarthur, Joye, and Alexander entered the
motel's lobby and approached the front desk clerk, demanding and
taking the motel's money at gunpoint. Rather than fleeing the
motel, the robbers hid in the lobby and ordered the front desk
clerk to return to her position. Moments later, as motel patrons
entered the lobby, the robbers leapt from their hiding places and
robbed the newly acquired victims at gunpoint. During this
robbery, one of the accomplices observed Dennis and Tracy Long
and Skylar and Adrian Panter walking through the parking lot
toward the motel lobby entranceway.
The most critical facts to our analysis are the
following: Tracy Long testified during trial that, as her
husband was opening the door to the motel lobby, she observed
individuals lying on the floor and, believing a robbery was
taking place, she prevented her group from entering. As she
attempted to turn her party away from the motel, one of the
robbers ordered the Longs and the Panters at gunpoint to enter
the lobby. Once inside, the Longs and the Panters were ordered
to the floor, searched, and robbed. The robbers recovered eight
dollars from Tracy Long, the only individual carrying currency.
Defendant and his accomplices fled the scene, and law enforcement
eventually apprehended the perpetrators.
At the close of the State's evidence, defendant made
numerous motions, including one to dismiss all second-degree
kidnapping charges. The trial court denied this motion. Defendant offered no evidence. After being instructed by the
trial court, the jury deliberated and on 19 March 2004 returned
verdicts of guilty for fifteen counts of second-degree
kidnapping, seven of the nine counts of robbery with a dangerous
weapon, and three counts of attempted robbery with a dangerous
(See footnote 1)
Upon receiving these verdicts, the trial court
consolidated defendant's charges and sentenced defendant in the
presumptive range to four consecutive prison terms of 117 to 150
Defendant appealed the trial court's denial of his
motion to dismiss nine of his fifteen second-degree kidnapping
(See footnote 2)
In a divided decision, the Court of Appeals reversed
the trial court's denial of defendant's motion to dismiss the
nine kidnapping charges and vacated these convictions. A
separate opinion concurring in part and dissenting in part found
no error as to four of defendant's appealed kidnapping
convictions, determining the convictions pertaining to the Longs
and the Panters were separate offenses.
On 6 September 2005, the State sought a temporary stay,
which was allowed on 6 September 2005, petitioned for writ of
supersedeas, which was allowed on 6 October 2005, and filed its
notice of appeal based upon a dissent. Therefore, pursuant to
Rule 16(b) of the North Carolina Rules of Appellate Procedure,
the scope of our review is restricted to the Court of Appeals'reversal of the four second-degree kidnapping charges addressed
in the dissenting opinion.
Kidnapping has been a recognized crime tracing back to
the earliest Judeo-Christian law. See Exodus 21:16 (Holman
Christian Standard). English common law defined kidnapping as
the forcible abduction or stealing away of a man, woman, or
child, from their own country, and sending them into another.
William Blackstone, 4 Commentaries *219.
Some federal courts, considering the separate states as
jurisdictions foreign to each other for the purpose of
kidnapping, incorporated the English common law definition of
kidnapping by modifying the offense to include the asportation of
an individual across state lines as well as across international
boundaries. See, e.g., Collier v. Vaccaro, 51 F.2d 17, 19 (4th
Cir. 1931) (The gist of the [kidnapping] offense is the forcible
carrying out of the state . . . .); Gooch v. United States, 82
F.2d 534, 537 (10th Cir.) ([K]idnapping at common law means to
forcibly abduct a person and to carry him from one state into
another state . . . .), cert. denied, 298 U.S. 658 (1936). So,
too, did Congress, in its enactment of the Federal Kidnapping Act
in 1932. 18 U.S.C. § 408(a) (1932) (currently codified at 18
U.S.C. § 1201 (2000)). The Act, often referred to as The
Lindbergh Law because its enactment came as a result of the
mysterious disappearance of Charles Lindbergh's infant son,currently follows the English common law by stating: Whoever
unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts,
or carries away and holds for ransom or reward or otherwise any
person . . . when--(1) the person is willfully transported in
interstate or foreign commerce . . . [,] shall be guilty of
kidnapping. 18 U.S.C. § 1201(a) (2000).
THE EVOLUTION OF KIDNAPPING IN NORTH CAROLINA
North Carolina did not codify any criminal acts of
taking an individual against his or her will until 1879, when the
General Assembly made criminal the act of abducting children. 1
N.C. Code of 1883, § 973 (1883). Noteworthily, the General
Assembly did not designate this offense kidnapping until 1901.
Act of Mar. 14, 1901, ch. 699, sec. 1, 1901 N.C. Sess. Laws 923,
923. However, this statute did not specifically define the
offense of kidnapping. Thus, in 1907 this Court defined
kidnapping to be 'false imprisonment aggravated by conveying the
imprisoned person to some other place.' State v. Harrison, 145
N.C. 295, 302, 145 N.C. 408, 417, 59 S.E. 867, 870-71 (1907)
(quoting 2 Joel Prentiss Bishop, The New Criminal Law § 750 (8th
ed. 1892)). This definition of kidnapping excluded the English
common law's requirement of asportation to another country. The
common law definition of kidnapping evolved in the state's
jurisprudence over the years, eventually being defined as the
unlawful taking and carrying away of a human being against his
will by force or fraud or threats or intimidation; or to seize
and detain him for the purpose of so carrying him away. Statev. Ingland, 278 N.C. 42, 50, 178 S.E.2d 577, 582 (1971) (emphasis
The offense of kidnapping, as it is now codified in
N.C.G.S. § 14-39, did not take form until 1975, when the General
Assembly amended section 14-39 and abandoned the traditional
common law definition of kidnapping for an element-specific
(See footnote 3)
The 1975 amendment to N.C.G.S. § 14-39 thus defined
kidnapping as the unlawful confinement, restraint, or removal
from one place to another of any person sixteen years of age or
over without that person's consent for the purpose of obtaining a
ransom, holding the victim hostage, facilitating the commission
of a felony or flight after the commission of the felony, or for
doing serious bodily harm to or terrorizing the victim. N.C.G.S.
§ 14-39(a) (1975). In 1978, this Court recognized it is clear
that the Legislature intended to change the law [of kidnapping]
with its 1975 amendment to N.C.G.S. § 14-39 and, therefore,rejected further use of the North Carolina common law definition
of kidnapping. State v. Fulcher, 294 N.C. 503, 522, 243 S.E.2d
338, 351 (1978). However, this Court in Fulcher also perceived
that with this new definition came the potential for a defendant
to be prosecuted twice for the same act. Accordingly, this Court
It is self-evident that certain felonies
(e.g., forcible rape and armed robbery)
cannot be committed without some restraint of
the victim. We are of the opinion, and so
hold, 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. . . . [W]e construe the
word restrain, as used in G.S. 14-39, to
connote a restraint separate and apart from
that which is inherent in the commission of
the other felony.
Id. at 523, 243 S.E.2d at 351. Additionally, this Court noted
that more than one criminal offense can grow out of the same
criminal transaction, but specifically held the restraint, which
constitutes the kidnapping, [must be] a separate, complete act,
independent of and apart from the other felony. Id. at 524, 243
S.E.2d at 352; see also State v. Beatty, 347 N.C. 555, 559, 495
S.E.2d 367, 369 (1998) (noting a person cannot be convicted of
kidnapping when the only evidence of restraint is that 'which is
an inherent, inevitable feature' of another felony such as armed
robbery) (quoting Fulcher, 294 N.C. at 523, 243 S.E.2d at 351).
Further, in State v. Irwin, this Court clarified the
separate act requirement by holding the defendant's asportation
of an employee at knife-point from the front to the rear of a
pharmacy to open the safe and obtain drugs was an inherent andintegral part of the attempted armed robbery, and thus such
asportation was legally insufficient to convict the defendant of
a separate charge of kidnapping. 304 N.C. 93, 103, 282 S.E.2d
439, 446 (1981) (To accomplish defendant's objective of
obtaining drugs it was necessary that [one of the employees] go
to the back of the store . . . and open the safe.). The Court
also noted that the defendant did not expose the victim to
greater danger than that inherent in the armed robbery itself,
nor is [the victim] subjected to the kind of danger and abuse the
kidnapping statute was designed to prevent. Id.; see also State
v. Pigott, 331 N.C. 199, 210, 415 S.E.2d 555, 561 (1992)
(explaining, [t]he 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
armed robbery itself') (quoting Irwin, 304 N.C. at 103, 282
S.E.2d at 446). Accordingly, because the defendant's moving of
the victim was a mere technical asportation, this Court found
the defendant's actions could not justify a separate conviction
of kidnapping. Irwin, 304 N.C. at 103, 282 S.E.2d at 446; see
also Rollin M. Perkins, Criminal Law, ch. 2, § 7(A)(1), at 178
(2d ed. 1969) (It has been held, quite properly, that where
movement is merely incidental to an assault the prosecution must
be for that offense and not for kidnapping.).
(See footnote 4)
Thus, as it stands today, and as it relates to the case
at hand, N.C.G.S. § 14-39 defines kidnapping 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 . . .
shall be guilty of kidnapping if such
confinement, restraint or removal is for the
. . .
(2) Facilitating the commission of any
felony or facilitating flight of any person
following the commission of a felony . . . .
N.C.G.S. § 14-39(a) (2005) (emphasis added).
APPLICATION OF OUR JURISPRUDENCE
While the trial court's findings of fact are conclusive
on appeal if supported by competent evidence, the trial court's
conclusions of law are reviewed de novo by this Court. State v.
Hyatt, 355 N.C. 642, 653, 566 S.E.2d 61, 69 (2002) (citing State
v. Barber, 335 N.C. 120, 129, 436 S.E.2d 106, 111 (1993), cert.
denied, 512 U.S. 1239 (1994)), cert. denied, 537 U.S. 1133
(2003). In accordance with stare decisis, we affirm the Court of
Appeals' decision holding defendant cannot be convicted of
second-degree kidnapping with regards to the Longs and the
To convict defendant of second-degree kidnapping of the
Longs and the Panters, the State was required to prove beyond a
reasonable doubt defendant, acting by himself or acting in
concert, confined, restrained, or removed the victims from one
place to another for the purpose of facilitating the commission
of a felony. N.C.G.S. § 14-39(a), (a)(2).
Additionally, we hold a trial court, in determining
whether a defendant's asportation of a victim during the
commission of a separate felony offense constitutes kidnapping,
must consider whether the asportation was an inherent part of the
separate felony offense, that is, whether the movement was a
mere technical asportation. If the asportation is a separateact independent of the originally committed criminal act, a trial
court must consider additional factors such as whether the
asportation facilitated the defendant's ability to commit a
felony offense, or whether the asportation exposed the victim to
a greater degree of danger than that which is inherent in the
concurrently committed felony offense.
Following the analysis in Irwin , we conclude the
asportation of the Longs and Panters from one side of the motel
lobby door to the other was not legally sufficient to justify
defendant's convictions of second-degree kidnapping. The moment
defendant's accomplice drew his firearm, the robbery with a
dangerous weapon had begun. The subsequent asportation of the
victims was a mere technical asportation that was an inherent
part of the robbery defendant and his accomplices were engaged
in. Irwin, 304 N.C. at 103, 282 S.E.2d at 446.
The State argues defendant's asportation of the Longs
and the Panters both facilitated the commission of robbery with a
dangerous weapon and exposed the victims to a greater degree of
danger than that inherent in the robbery with a dangerous weapon.
Defendant asserts the opposite, stating the asportation had no
effect on defendant's ability to complete the robbery with a
dangerous weapon. Further, defendant argues the amount of danger
to which the victims were exposed never exceeded the degree of
harm inherent in the commission of robbery with a dangerous
While these contentions from both parties are not
without merit, they are unnecessary considerations for ouranalysis. Because we find defendant's asportation of the victims
to be a mere technical asportation which is an inherent part of
the commission of robbery with a dangerous weapon, we cannot
under our jurisprudence uphold defendant's convictions of second-
degree kidnapping as to the Longs and the Panters.
As defendant's actions constituted only a mere
technical asportation of the victims which was an inherent part
of the commission of robbery with a dangerous weapon, defendant
cannot be convicted of the separate crime of second-degree
kidnapping. Accordingly, we affirm the Court of Appeals'
decision vacating defendant's four convictions of second-degree
Justice TIMMONS-GOODSON did not participate in the
consideration or decision of this case.
Footnote: 1 The State dismissed the charge of assault by pointing a
Footnote: 2 Defendant did not contest six of his second-degree
Footnote: 3 The element-specific definition enacted by the General
Assembly is similar to that found in the Model Penal Code, which
A person is guilty of kidnapping if he
unlawfully removes another from his place of
residence or business, or a substantial
distance from the vicinity where he is found,
or if he unlawfully confines another for a
substantial period in a place of isolation,
with any of the following purposes:
. . . .
(b) to facilitate commission of any
felony or flight thereafter;
. . . .
A removal or confinement is unlawful within
the meaning of this Section if it is
accomplished by force, threat or deception .
. . .
Model Penal Code § 212.1 (1960)
Footnote: 4 A number of jurisdictions similarly define kidnapping and
require the act constituting kidnapping to be a separate act
which is not an inherent part of any other felony committed. See
United States v. Seay, 60 M.J. 73, 80-81 (2004) (listing a number
of factors to consider in determining whether asportation of avictim is more than an incidental or momentary detention);
People v. Rayford, 9 Cal. 4th 1, 12, 884 P.2d 1369, 1374 (1994)
(Kidnapping for robbery, or aggravated kidnapping, requires
movement of the victim that is not merely incidental to the
commission of the robbery, and which substantially increases the
risk of harm over and above that necessarily present in the crime
of robbery itself.); Carron v. State, 427 So. 2d 192, 193 (Fla.
1983) ([W]e hold that in order for a person to be convicted of
kidnapping with intent to commit or facilitate the commission of
another felony the offending movement or confinement must not be
slight, inconsequential, and merely incidental to the other
felony; must not be of the kind inherent in the nature of the
other crime; and must have some significance independent of the
other crime in that it makes the other crime substantially easier
of commission or substantially lessens the risk of detection.);
People v. Enoch, 122 Ill. 2d 176, 197, 522 N.E.2d 1124, 1135
(stating the court's acceptance of the logic that an aggravated
kidnapping conviction should not be sustained where the
asportation or confinement may constitute only a technical
compliance with the statutory definition but is, in reality,
incidental to another offense), cert. denied, 488 U.S. 917
(1988); People v. Wesley, 421 Mich. 375, 388, 365 N.W.2d 692,
696-97 (1984) (listing the elements of the crime of kidnapping to
include an asportation of the victim which is not merely
incidental to an underlying crime unless the crime involves
murder, extortion or taking a hostage. Asportation incidental to
these types of crimes is sufficient asportation for a kidnapping
conviction.); People v. Riley, 70 N.Y.2d 523, 532, 517 N.E.2d
520, 525 (1987) (holding the defendant's actions in placing his
victim in the trunk of his car and driving around for
approximately three hours went well beyond the robbery and
constituted the independent crime of kidnapping); State v.
Fuller, 172 S.W.3d 533, 536 (Tenn. 2005) ([A] separate
kidnapping conviction violates due process when 'the confinement,
movement, or detention is essentially incidental to the
accompanying felony' and not 'significant enough in and of itself
to warrant independent prosecution.') (quoting State v. Anthony,
817 S.W.2d 299, 305, 306 (Tenn. 1991)).
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