State v. Curtis
State v. Curtis
Opinion of the Court
*107Donald Lee Curtis ("defendant") appeals from judgments entered in accordance with a sentencing agreement reached after a jury found him guilty on one count of attempted robbery with a firearm, one count of possession of a firearm by a felon, one count of first-degree burglary of a dwelling house, two counts of robbery with a firearm, two counts of assault with a deadly weapon, and two counts of second-degree kidnapping. For the following reasons, we find no error.
*108I. Background
In the early morning hours of 30 April 2013, three armed black males, two with handguns and one with a shotgun, busted through the door of a residence at 2400 Harper Road in Clemmons where Megan Martin and Refeigo Pina lived. At the time of the break in, Christopher Cowles and Justin Collins were also at the residence. Cowles was with Pina in the downstairs living room where the intruders entered learning how to play Pina's guitar. Justin Collins and Martin were asleep in the upstairs bedroom.
As the intruders entered, they asked where Collins was, instructed each other to get the cell phones, and ordered Cowles and Pina to put their hands up. Cowles attempted to quickly dial 911 before he tossed his cell phone to the side of the couch that he and Pina were sitting on. The intruders did not get either Cowles' or Pina's cell phones. Cowles recognized the two intruders with handguns (the "other intruders") and inquired why they were doing what they were doing. The third intruder, whom Cowles did not know but whom Cowles was later able to identify as defendant with 100% certainty, then placed his shotgun in Cowles' face and threatened to shoot Cowles if Cowles was not quiet. Pina was held at gunpoint by one of the other intruders while the third intruder looked around for Collins. Upon repeated *524questioning concerning Collins' whereabouts, Cowles told the intruders that Collins was upstairs.
The intruders then ushered Cowles and Pina upstairs with guns to their backs. Cowles and Pina did not go upstairs voluntarily. Once upstairs, Cowles cut the lights on and tapped Collins on the foot to wake him up. As Collins was waking up, one of the other intruders pulled the covers back and struck Collins on the side of the head with a handgun. Martin was awakened by the commotion and was frantic. The intruders directed Cowles, Pina, Collins, and Martin into the corner of the bedroom and told them not to move. As they were moving to the corner, one of the other intruders struck Pina in the face with a handgun.
Defendant held the shotgun pointed towards Cowles, Pina, Collins, and Martin while the other intruders tore the bedroom apart. The other intruders took Collins' cellphone and wallet with approximately $2,000 in it from the nightstand, took cash from Martin's purse, and took Martin's iPhone from the dresser.
The other intruders then instructed defendant to stay with Cowles, Pina, Collins, and Martin as the other intruders went back downstairs. Cowles could hear lots of banging and smashing downstairs, like things were being destroyed. Defendant stayed at the top of the stairs with the *109shotgun pointed at Cowles, Pina, Collins, and Martin to keep them from moving for several minutes before telling them not to move and backing down the stairs. The intruders then fled from the apartment, slashing tires on Cowles', Pina's, Collins', and Martin's vehicles upon their exit. In addition to the items taken from upstairs, the intruders took a PlayStation 3, Pina's guitar, and car keys from downstairs.
Besides Cowles' identification of defendant, both Collins and Martin were 100% certain that defendant was the intruder with a shotgun. Collins recognized defendant from time they spent incarcerated together.
Based on the events of 30 April 2013, defendant was arrested and later indicted by a Forsyth County Grand Jury on 23 September 2013 on three counts of robbery with a dangerous weapon, one count of attempted robbery with a dangerous weapon, two counts of second-degree kidnapping, one count of possession of a firearm by a felon, one count of first-degree burglary, and two counts of assault with a deadly weapon. Defendant's case came on for trial in Forsyth County Superior Court before the Honorable Judge Ronald E. Spivey on 10 March 2014.
At the conclusion of defendant's trial the jury returned verdicts finding defendant guilty on all charges except the one count of robbery with a dangerous weapon related to Pina. In accordance with a sentencing agreement reached between defendant and the State, the trial court consolidated defendant's nine convictions into three Class D felonies and sentenced defendant at the top of the presumptive range for each felony with a prior record level VI to three consecutive terms of 128 to 166 months imprisonment. The judgments were entered on 12 March 2014. Defendant gave notice of appeal in open court following sentencing.
II. Discussion
At the close of the State's evidence, defendant moved to dismiss all of the charges and the trial court denied defendant's motion. Defendant then renewed his motion after he decided not to put on any evidence in his own defense. The trial court again denied defendant's motion. Now on appeal, the only issue is whether the trial court erred in denying defendant's motion to dismiss the kidnapping charges.
*5253 *110"This Court reviews the trial court's denial of a motion to dismiss de novo. " State v. Smith,
In North Carolina, any person who unlawfully confines, restrains, or removes from one place to another, any other person sixteen years old or older without the consent of such person is guilty of kidnapping if the confinement, restraint, or removal is for a purpose enumerated in the statute, including "[f]acilitating the commission of any felony or facilitating flight of any person following the commission of a felony[.]" N.C. Gen.Stat. § 14-39(a) (2015). "If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree...." N.C. Gen.Stat. § 14-39(b).
Recognizing potential double jeopardy concerns in cases where the restraint necessary for kidnapping, that is "a restriction, by force, threat or fraud, without a confinement[,]" State v. Fulcher,
*111It 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 [N.C. Gen.Stat. § ] 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. To hold otherwise would violate the constitutional prohibition against double jeopardy. [To avoid the constitutional issue], we construe the word "restrain," as used in [N.C. Gen.Stat. § ] 14-39, to connote a restraint separate and apart from that which is inherent in the commission of the other felony.
On the other hand, it is well established that two or more criminal offenses may grow out of the same course of action, as where one offense is committed with the intent thereafter to commit the other and is actually followed by the commission of the other (e.g., a breaking and entering, with intent to commit larceny, which is followed by the actual commission of such larceny). In such a case, the perpetrator may be convicted of and punished for both crimes. Thus, there is no constitutional barrier to the conviction of a defendant for kidnapping, by restraining his victim, and also of another felony to facilitate which such restraint was committed, provided the restraint, which constitutes the kidnapping, is a separate, complete act, independent of and apart from the other felony.
Id. at 523-24,
[t]he evidence for the State [was] clearly sufficient to support a finding by the jury *526that the defendant bound the hands of each of the two women, procuring their submission thereto by his threat to use a deadly weapon to inflict serious injury upon them, thus restraining each woman within the meaning of [N.C. Gen.Stat. § ] 14-39, and that his purpose in so doing was to facilitate the commission of the felony of crime against nature.
*112Id. at 524,
"In accordance with [the Court's] analysis of the term 'restraint' [in Fulcher ], [the Court later] construe[d] the phrase 'removal from one place to another' [in N.C. Gen.Stat. § 14-39 ] to require a removal separate and apart from that which is an inherent, inevitable part of the commission of another felony." State v. Irwin,
in determining whether a defendant's asportation of a victim during the commission of a separate felony offense constitutes kidnapping, [a trial court] 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 separate act 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.
State v. Ripley,
In the present case, defendant was convicted of kidnapping Cowles and Pina. Defendant now contends the trial court erred by not dismissing the kidnapping charges for insufficiency of the evidence because Cowles and Pina were moved and restrained only to the extent required for the armed robberies. Specifically, defendant asserts that "[a]ll restraint and movement of Cowles and Pina occurred during the course of the robberies and was integral to the robberies. There was no independent restraint or removal that could support [defendant's] convictions for kidnapping Cowles and Pina."
In addition to Fulcher, supra, defendant relies on a number of cases in which our appellate courts have overturned kidnapping convictions. The facts are important in each case.
*113In Irwin, the defendant was convicted of first degree felony murder, attempted armed robbery, and kidnapping after a failed robbery of a drugstore occupied by the owner and an employee.
*527In State v. Ripley, the defendant was convicted of seven counts of robbery with a firearm, three counts of attempted robbery with a firearm, and fifteen counts of second-degree kidnapping after a crime spree that included the armed robbery of a an Extended Stay American Motel and patrons.
On appeal to our Supreme Court from a dissent in this Court's Ripley opinion on the issue of whether the forced movement of the second group of patrons into the motel lobby could sustain a separate kidnapping conviction, our Supreme Court affirmed this Court's decision, concluding "the asportation of the [second group of patrons] from one side of the motel lobby door to the other was not legally sufficient to justify [the] defendant's convictions of second-degree kidnapping[ ]" because "[t]he moment [the] 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." Ripley,
In State v. Cartwright, the defendant was convicted of first-degree kidnapping, armed robbery, first-degree rape, and other offenses based on evidence tending to show that when the victim opened her house door, the defendant grabbed the victim's arm and forced the victim back into her kitchen, pulled a knife out of his pocket, demanded money, put the knife back in his pocket and attempted to choke the victim with a towel, struggled with the victim from the kitchen, through a hallway, and into the den, knocked the victim to the floor, attempted to smother the victim with a pillow, raped the victim, *528demanded money again, followed *115the victim down a hallway to the victim's bedroom where the victim gave the defendant a dollar, and then fled the victim's house.
With regards to armed robbery ... [,] [t]he victim's movement down the hallway is a mere asportation because the armed robbery began when defendant showed the knife to the victim in the kitchen and demanded money, and [the] defendant's movement between the kitchen, den, and bedroom did not expose the victim to a greater degree of danger....
With regards to rape, [the] defendant began and concluded the rape in the den. Because the crime of rape occurred wholly in the den, we find that there was insufficient evidence of confinement, restraint, or removal.
Id. at 537,
In State v. Payton, the defendant was convicted of first-degree burglary, two counts of robbery with a dangerous weapon, and two counts of second-degree kidnapping.
In State v. Featherson, the defendant was convicted of robbery with a dangerous weapon, second-degree kidnapping, and conspiracy to commit armed robbery after she helped her boyfriend and a mutual friend rob the Bojangles restaurant where the defendant worked.
*529and "not sufficient to sustain a conviction for second-degree kidnapping." Id. at 139-40,
Relying first on Cartwright, defendant contends the robberies in the present case began as soon as he and his accomplices entered the residence and ordered Cowles and Pina to turn over their cell phones. Consequently, defendant claims any movement or restraint thereafter occurred during the course of the robberies. Defendant then relies on Ripley and Irwin to argue that moving victims to the location of other victims or to the area where the stolen property was located is integral to the robbery. Lastly, defendant relies on Featherson and Payton to support his contention that the restraint of Cowles and Pina in the corner of the upstairs bedroom while the other intruders searched the residence was not independent of the robbery.
*117While the movement and restraint of Cowles and Pina may have occurred during the course of all the robberies, we are not convinced that the removal of Cowles and Pina from downstairs to upstairs was integral to or inherent in the armed robberies of Cowles and Pina, or the armed robberies of Collins and Martin.
First, the evidence tends to show that the robberies, or attempted robberies, of Cowles and Pina took place entirely downstairs when the robbers demanded Cowles' and Pina's cell phones, to no avail. There is no evidence that any other items were demanded from Cowles or Pina at any other time and Cowles testified that nothing was taken from his person. Thus, it is difficult to accept defendant's argument that the movement of Cowles and Pina was integral to the attempted robberies of Cowles and Pina. We emphasize attempt because defendant was convicted of attempted robbery with a firearm of Cowles; defendant was acquitted of robbery with a firearm of Pina. In fact, the evidence in this case is clear that defendant and the other intruders entered the residence in search of Collins. In the light most favorable to the State, it appears the removal of Cowles and Pina from downstairs to the upstairs was neither integral in the robberies of them, nor the robberies of Collins and Martin.
Second, we find the removal of Cowles and Pina from downstairs to upstairs by defendant and the other intruders to be more significant than the movement of victims from one side of a motel lobby door to the other in Ripley or from a bathroom foyer into the adjoining bathroom in Payton . Therefore, we hold the present case is distinguishable from those cases. We further note that in Ripley, the second group of patrons were robbed once they were forced into the motel lobby, Ripley,
The reasoning in Allred and Davidson applies equally in the present case. Because nothing further was sought, nor taken, from Cowles and Pina after they were ordered to give up their cell phones, it appears the only reason to remove Cowles and Pina to the upstairs was to prevent them from hindering the subsequent robberies of Collins and Martin.
Third, we are not persuaded that Irwin and Ripley apply in this case. Defendant relies on Irwin and Ripley for the propositions that moving victims to an area where the property taken is located or to an area where other victims are located are inherent and integral parts of the robbery. Defendant's takeaways from those cases are imprecise and oversimplified. In Irwin, the Court made clear that the removal of the drugstore employee from the cash register area to the prescription counter in the back of the drugstore was an inherent and integral part of the attempted armed robbery because the defendant needed the employee to open a safe in order to complete the defendant's objective of obtaining drugs.
Lastly, we note that the removal of Cowles and Pina upstairs did subject them to greater danger. Although our Court has acknowledged that the display of a firearm or threatened use of a firearm does not subject the victims to greater danger than that inherent in an armed robbery, see Ripley,
III. Conclusion
In the light most favorable to the State, the evidence in this case is sufficient to sustain the separate second-degree kidnapping convictions. Thus, the trial court did not err in denying defendant's motions to dismiss.
NO ERROR.
Judge STEPHENS concurs.
Judge HUNTER, JR., dissents.
In the event we determined defendant's general motions to dismiss at trial did not preserve this issue for appeal, defendant additionally asserts an ineffective assistance of counsel argument. The State, however, specifically responds that "[it] does not dispute that [d]efendant preserved this issue for review." Upon review of the record, we think there is a question whether defendant's motions preserved this specific issue for appeal. Yet, given that the State concedes the issue is preserved and defendant has asserted an ineffective assistance of counsel argument in the alternative, we invoke Rule 2 of the North Carolina Rules of Appellate Procedure out of an abundance of caution and address the merits of the issue. See State v. Marion,
Dissenting Opinion
Defendant was indicted for two counts of second degree kidnapping. The first indictment charges him with kidnapping Refegio Pina in connection with the attempted armed robbery of Christopher Cowles's cell phone. The second indictment charges Defendant with kidnapping Christopher Cowles, Count I, "by using, displaying, or threatening the use or display of a firearm and the defendant did actually possess the firearm about the defendant's person." Count II is an assault with a deadly weapon charge alleging Defendant struck Collins in the head with a handgun. Count III is an assault with a deadly weapon charge alleging Defendant struck *531Pina in the head with a handgun. While the attempted armed robbery against Cowles took place in the downstairs of the home, the assaults against Collins and Pina took place upstairs. In *120an indictment charging kidnapping, the State does not have to "set forth ... the specific felony that the kidnapping facilitated." State v. McRae,
As the majority opinion points out, all of the criminal acts took place within Martin's home. The majority makes a distinction that the asportation of Pina and Cowles took place when they were moved from the downstairs living room to the upstairs bedroom. The majority contends these asportations were separate acts from the attempted robbery against Cowles, which occurred downstairs, and the assault on Collins, which occurred upstairs. In my view, these individual crimes occurred throughout the home and were all part of an overall plan to rob Collins inside the home. I dissent because our precedent holds that all criminal acts that are part of a robbery transaction cannot be so carefully parsed as to create separate kidnapping crimes. See State v. Irwin,
I agree that the majority has cited the appropriate test to be applied from Ripley,
Reference
- Full Case Name
- STATE of North Carolina v. Donald Lee CURTIS.
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