Opinion
No. COA12–810–2.
2013-06-4
STATE of North Carolina v. George Victor STOKES.
Leslie C. Rawls, for defendant. Attorney General Roy Cooper, by Assistant Attorney General Alexandra M. Hightower, for the State.
Appeal by defendant from judgment entered 9 March 2012 by Judge Richard T. Brown in Hoke County Superior Court. Heard in the Court of Appeals 11 December 2012. Leslie C. Rawls, for defendant. Attorney General Roy Cooper, by Assistant Attorney General Alexandra M. Hightower, for the State.
ELMORE, Judge.
George Victor Stokes (defendant) appeals from a judgment entered, in part, upon a jury conviction of second-degree kidnapping. This Court initially heard the appeal on 11 December 2012, and we concluded that the State failed to offer sufficient evidence to prove removal. Accordingly, we reversed the second-degree kidnapping conviction and remanded to the trial court for a new sentencing hearing. Our Supreme Court then granted the State's petition for discretionary review for the limited purpose of remanding the case to this Court for consideration of whether defendant's actions otherwise satisfied the remaining elements of either restraint or confinement under N.C.G.S. § 14–39(a)(3) or, if applicable, the elements of attempted kidnapping under N.C.G.S. § 15–170. After careful consideration, we again conclude that the State failed to prove the requisite elements of second-degree kidnapping.
I. Background
On 21 April 2008, defendant and one other man entered a convenience store on Laurinburg Road in Hoke County. Wielding guns, they approached the clerk and demanded a pack of Newport cigarettes and money from the register. As the clerk reached under the counter to retrieve the cigarettes, defendant asked, “What you doing? What you doing under there?” and fired a shot beside the clerk's head.
After the clerk gave the men the cigarettes and money, defendant told the clerk to walk to the back of the store, but the clerk refused. Defendant then demanded the clerk to get into a car that was parked and waiting outside the store. The clerk began walking out from behind the counter, but he stopped after about five feet and refused to get in the car. Defendant and the other man then left the store and drove away.
Defendant was later arrested and charged with second-degree kidnapping, possession of a firearm by a felon, AWDWIK, attempted first-degree murder, robbery with a dangerous weapon, and habitual felon. He was convicted of all charges, except attempted first-degree murder, and was sentenced to two consecutive terms of 145 to 183 months imprisonment.
II. Analysis
On remand from our Supreme Court, the relevant issues for our consideration are 1) whether the State offered sufficient evidence to prove restraint or confinement under N.C.G.S. § 14–39(a)(3) and 2) whether the State offered sufficient evidence to prove attempted second-degree kidnapping under N.C.G.S. § 15–170.
A. Restraint or Confinement
We will first address whether the State presented sufficient evidence of restraint or confinement. This Court has held that the “term ‘confine’ connotes some form of imprisonment within a given area, such as a room, a house or a vehicle. The term ‘restrain,’ while broad enough to include a restriction upon freedom of movement by confinement, connotes also such a restriction, by force, threat or fraud, without a confinement.” State v. Payton, 198 N.C.App. 320, 325, 679 S.E.2d 502, 505 (2009) (quotations and citation omitted).
Here, defendant was convicted of both second-degree kidnapping and robbery with a dangerous weapon. In instances such as these, we must consider the fact that “[i]t is self-evident that certain felonies ... cannot be committed without some restraint of the victim.” Id. at 326, 679 S.E.2d at 505 (quotations and citations omitted). Thus, the 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[.]” Id. at 326, 679 S.E.2d at 506 (quotations and citations omitted).
In State v. Allred, 131 N.C.App. 11, 505 S.E.2d 153 (1998), we considered circumstances nearly identical to those encircling the case at issue. There, the defendant was convicted, in relevant part, of second-degree kidnapping and robbery with a dangerous weapon. On appeal, we found that “the evidence shows only that defendant and his accomplice held [the victims] at gunpoint during the commission of the robbery. These victims were not moved, nor were they injured in any way.” Id. at 20, 505 S.E.2d at 159. Accordingly, we concluded that “the restraint inflicted upon these victims was insufficient to support separate kidnapping convictions.” Id. Likewise, in State v. Beatty, 347 N.C. 555, 495 S.E.2d 367 (1998), our Supreme Court reversed a kidnapping conviction where the victim was held at gunpoint during the robbery, but not bound or physically harmed.
Here, the victim testified that defendant and the other man entered the store where he was working and demanded money and cigarettes, all while pointing a gun at him “the whole time.” Further, like the victims in Allred and Beatty, the victim here was not moved , bound, or injured in anyway. His testimony established that defendant never touched him and that defendant “didn't try to ... like drag me by the arm or something.” Thus, we can find no support for the State's argument that the victim was restrained or confined.
We previously concluded in our initial opinion that the victim was not “moved” as the term “removal” is intended in the statute. This Court established in State v. Boyd, ––– N.C.App. ––––, 714 S.E.2d 466, 472 (2011) that “where the victim was moved a short distance of several feet, and was not transported from one room to another, the victim was not ‘removed’ within the meaning of our kidnapping statute.”
Further, we reject the State's argument that defendant's decision to continue to point the gun at the victim after he received the items he demanded constitutes a separate restraint or confinement. As we have noted, the primary consideration regarding whether a restraint or confinement is a separate or complete act is whether those acts “expose the victim to danger greater than that inherent in the robbery itself.” State v. Parker, 81 N.C.App. 443, 447, 344 S.E.2d 330, 333 (1986).
Accordingly, we find the State's reliance on State v. Thompson, 129 N.C.App. 13, 497 S.E.2d 126 (1998), to be misplaced. There, we concluded that the defendant exposed the victims to greater harm than inherent in the armed robbery, because the defendant and another person forced the “victims to walk at gunpoint to a room in the back of the store. They robbed [the victims] of their personal property and then robbed the store of its merchandise.” Id. at 19, 497 S.E.2d at 130 (1998). We concluded that since “[n]one of the property taken from [the victims] was kept in the meat department, the room in which the two victims were later transported” the “defendant's removal of [the victims] was not an inherent and integral part of the armed robbery that she committed.” Id. at 19–20, 497 S.E.2d at 130. Accordingly, we upheld the second-degree kidnapping convictions. Id.
In contrast, here the money and cigarettes were located in the front of the store, behind the counter, where the victim was standing. As such, defendant's decision to continuously point a gun at the victim did not expose the victim to any greater harm than that inherent in the robbery itself.
B. Attempted second-degree kidnapping
Next, our Supreme Court has directed us to consider whether defendant's actions satisfied the elements of attempted second-degree kidnapping, but only if such analysis would be applicable given the facts and circumstances of this case. Upon review of the record, we find a discussion of attempted second-degree kidnapping to be inappropriate here for the following reasons: 1) The State did not argue or attempt to prove attempted second-degree kidnapping at trial; 2) Likewise, the jury was not instructed on attempted second-degree kidnapping; 3) The State made no mention or argument of attempted second-degree kidnapping in its appeal to this Court. Simply put, we conclude that this issue was not advanced or preserved by the State for our review.
III. Conclusion
In sum, having previously concluded that the State failed to present sufficient evidence of removal, we now conclude that the State likewise failed to present sufficient evidence of restraint or confinement. We find that defendant's continuous pointing of a gun at the victim exposed the victim to no greater harm than that inherent in the armed robbery. Further, we decline to address whether defendant's actions satisfied the elements of attempted second-degree kidnapping. Thus, we again vacate the second-degree kidnapping conviction and remand for resentencing.
Vacated and remanded. Judges McGEE and HUNTER, ROBERT C. concur.
Report per Rule 30(e).