Opinion
No. COA11–1215.
2012-04-3
STATE of North Carolina v. Jason Paul YATES and State of North Carolina v. Irvin Louis Vasquez.
Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton and Assistant Attorney General LaToya B. Powell, for the State. Robert W. Ewing for Defendant Yates.
Appeal by Defendants from judgments entered 22 November 2010 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 9 February 2012. Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton and Assistant Attorney General LaToya B. Powell, for the State. Robert W. Ewing for Defendant Yates.
J. Clark Fischer for Defendant Vasquez.
BEASLEY, Judge.
Irvin Louis Vasquez (Defendant Vasquez) and Jason Paul Yates (Defendant Yates) each appeal their convictions of four counts of second degree kidnapping, three counts of robbery with a dangerous weapon, one count of attempted robbery with a dangerous weapon, one count of conspiracy to commit robbery with a dangerous weapon, and one count of first degree burglary. For the following reasons, we find no error.
On 17 December 2008, David Ryan Farmer (David) was at his apartment with his girlfriend, Anna Peeler (Anna), his roommate Jeffry Gerding (Jeffry), and his friend Dean Rowe (Dean). Later in the evening, David received a call from Joseph Ryan Polanco–Morrero (Joseph), whom he had met through a mutual friend. Joseph asked David if he knew where he could obtain a large amount of marijuana. David replied that he did not know where he could get a large amount of marijuana, but told Joseph that he had a “small sack” of marijuana to sell.
Joseph arrived at David's residence shortly after the phone call. Joseph purchased the marijuana and when he opened the door to exit the residence, Defendants came into the residence wearing masks and carrying handguns. Defendants told everyone to get on the floor and demanded money and drugs. David complied and showed Defendants where the drugs and the money were located. After Defendant Yates retrieved the money and the drugs, Defendants ordered Joseph to duct tape David, Anna, Jeffry, and Dean. Joseph then duct taped himself. Defendants then fled with approximately $2,300.00 in cash, 4.5 ounces of marijuana, three cellular telephones, and a bong.
On 10 February 2009, each Defendant was indicted on four counts of second degree kidnapping. On 24 August 2010, each Defendant was also indicted on four counts of robbery with a dangerous weapon, four counts of conspiracy to commit robbery with a dangerous weapon, and one count of first degree burglary. On 10 November 2010, the State filed a motion to join Defendants' cases for trial and the trial court granted the State's motion on 15 November 2010. On 19 November 2010, a jury found Defendants guilty of three counts respectively of robbery with a dangerous weapon, one count respectively of attempted robbery with a dangerous weapon, four counts respectively of conspiracy to commit robbery with a dangerous weapon, four counts respectively of second degree kidnapping, and one count respectively of first degree burglary. The trial court vacated three counts of conspiracy to commit robbery with a dangerous weapon. Defendants gave oral notice of appeal in open court.
Defendants submitted separate briefs on appeal. Because both Defendants argued essentially the same issues, we will address both Defendants' arguments together.
First, Defendant Yates argues that the trial court erred by denying his motion to dismiss four counts of second degree kidnapping because the State failed to present evidence tending to show that the victims were confined, restrained, or removed in any way beyond what was required to accomplish the robbery with a dangerous weapon. We disagree.
“This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “ ‘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.’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). “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, 265 S.E.2d 164, 169 (1980). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).
In State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978), our Supreme Court held that certain felonies, like armed robbery, cannot be committed without some restraint of the victim, and convicting the defendant of kidnapping based on the inherent, inevitable restraint of the other felony would violate the constitutional prohibition against double jeopardy. As a result, when a defendant is charged with kidnapping and a felony that involves an inherent restraint, the State must prove that the restraint that supports the kidnapping is “a separate, complete act, independent of and apart from the other felony.” Id. at 524, 243 S.E.2d at 352. Additionally, our Court has held that “[e]vidence that a defendant increased the victim's helplessness and vulnerability beyond what was necessary to enable the robbery ... is sufficient to support a kidnapping charge.” State v. Muhammad, 146 N.C.App. 292, 295, 552 S.E.2d 236, 237 (2001).
Defendant Yates asserts that restraining the four victims with duct tape and confining them to the living room was an inherent feature of the armed robbery. Defendant Yates relies on State v. Featherson, 145 N.C.App. 134, 548 S.E.2d 828 (2001). In Featherson, this Court held the restraint and the removal of the victim was an “inherent and integral part of the armed robbery.” Id. at 139, 548 S.E.2d at 832. In Featherson, one victim was forced to leave the room to open the safe and the other victim was loosely bound in the same room where the robbers initially entered. The defendant was charged with kidnapping of the bound victim. Our Court concluded that the kidnapping was inherent in the armed robbery where the victim was not moved and was bound loosely enough to escape before the robbery ended. This Court determined that this type of restraint did not expose the victim to any “greater danger than that inherent in the armed robbery itself, nor [was she] subjected to the kind of danger and abuse the kidnapping statute was designed to prevent.” Id. at 140, 548 S.E.2d at 832.
Unlike Featherson, the State's evidence in this case showed that all four of the victims were bound by duct tape after Defendants retrieved the money and drugs. Moreover, all victims were bound at the wrists and also at the ankles. In this case, none of the victims were able to remove the duct tape, nor were any of the victims able to free themselves before the completion of the robbery. Based on these facts, Defendants, unlike the defendant in Featherson, increased the victims' helplessness and vulnerability beyond what was necessary to complete the armed robbery.
Defendant Vasquez also argues that Featherson is controlling, just as Defendant Yates. Defendant Vasquez submits that the trial court erred because the restraint was an inevitable part of the armed robbery, but Defendant Vasquez argues that Featherson controls because “the duct taping of the victims in both cases was inextricably linked to the underlying robbery and thus cannot support separate convictions.” Although both cases deal with binding victims to facilitate armed robbery, Defendant Vasquez applies the wrong standard. It is irrelevant to our inquiry that the victims were bound to facilitate the armed robbery. The question is whether the kidnapping is a separate, complete act, independent of and apart from the armed robbery as outlined in Fulcher.
The State's evidence showed that Defendants entered David's residence armed; Defendants demanded that David, Jeff, and Dean lie face down on the floor in the living room; Defendants forced Anna, who was in the bedroom, at gun point to move to the living room; Defendants demanded the drugs and the money and David complied with Defendants' demands; Defendants instructed Joseph to bind the victims' wrists and ankles after Defendants had obtained the drugs and the money; and Defendants fled leaving all of the victims bound. Viewing the facts in the light most favorable to the State, the State presented substantial evidence that the kidnapping was not inherent in the armed robbery, but separate and independent from the robbery.
Finally, Defendant Yates also argues that any movement of the victims was “a mere technical asportation.” In State v. Ripley, 360 N.C. 333, 626 S.E.2d 289 (2006), our high court stated, “in determining whether a defendant's asportation of a victim during the commission of a separate felony offense constitutes kidnapping, [we] must consider whether the asportation was an inherent part of the separate felony offense, that is, whether the movement was a mere technical asportation.” Id. at 340,626 S.E.2d at 393–94 (internal quotation marks omitted). Defendant's argument is without merit where the State presented substantial evidence of restraint that was not inherent in the armed robbery. Defendant Yates' argument presumes that the State must present evidence of both removal and restraint. Because kidnapping requires removal or restraint and the State presented substantial evidence of restraint, we overrule Defendant Yate's asportation argument.
No Error. Judges STEPHENS and STROUD concur.
Report per Rule 30(e).