Opinion
No. 06-1688.
Filed November 6, 2007.
Mecklenburg County No. 04-CRS-253063-65.
Appeal by defendant from judgment entered 07 February 2006 by Judge Jesse B. Caldwell, III in Mecklenburg County Superior Court. Heard in the Court of Appeals 20 September 2007.
Attorney General Roy Cooper, by Special Deputy Attorney General Kay Linn Miller Hobart, for the State. Geoffrey W. Hosford, for defendant-appellant.
Forcing a victim to strip naked from the waist up increased her vulnerability and helplessness and was a restraint sufficient to support a kidnapping conviction, but was not a restraint inherent in the armed robbery. Without an objection at trial to evidence that was the subject of a pre-trial suppression motion, the matter is not preserved for appellate review. The State presented substantial evidence that the defendant was the perpetrator of the crimes.
I. Factual Background
On the night of 20 November 2004, at approximately 10 to 10:30 p.m., Jamie Wojtowicz (hereinafter "Wojtowicz") was approached by two men in a parking lot as she was getting out of her car. One man, later identified as Darryl Vonzell Sullivan, Jr. (hereinafter "defendant") pointed a gun at her. The men stood approximately four feet from Wojtowicz and her car. The car was parked near a street light and Wojtowicz was able to see their faces. After ordering her to get back in the car, the men entered the car. Defendant got in the back seat and placed the gun to Wojtowicz's head. The men demanded money. Wojtowicz gave them all the money she had and offered them her car. They insisted that she had more money.
The men called her a liar and demanded $1,500.00. They searched the car for money. Finding none, the men drove her around Charlotte while they debated what to do. While one man drove the car, the man identified by Wojtowicz as the defendant, sat in the back seat, behind the driver, and held the gun to Wojtowicz's head. The men forced Wojtowicz back to the driver's seat and told her to drive to a nearby drive-up automated teller machine, where she withdrew forty dollars. She gave them the money. The man in the front seat again took over the driving. The men complained of the heat, and the driver told Wojtowicz to remove her shirts. She complied, removing her shirts as instructed until she was completely topless. The gunman later told her to put her shirt back on.
The men instructed Wojtowicz to call her roommate. Telling her that her car had broken down and needed help, Wojtowicz asked her to "come by herself and bring money" to the parking lot of a CiCi's Pizza. When Wojtowicz and the men arrived at the restaurant's parking area, the men also took her phone. Meanwhile, Wojtowicz' friend had called 911.
When the police pulled into the parking lot, the two men fled. Officer York pursued one of the men, whom he kept in sight throughout the chase. After a 150-200 yard chase, Officer York apprehended defendant and brought him to the parking lot. Wojtowicz positively identified defendant as the gunman. The police never recovered a gun.
Defendant was indicted for first-degree kidnapping, robbery with a dangerous weapon, and resisting a public officer. Defendant filed a pretrial motion to suppress both Wojtowicz's identification of defendant in the parking lot and any proposed in-court identification by Wojtowitcz. The trial court denied the motion.
The jury returned a verdict of guilty on all charges. The trial court entered two judgments imposing consecutive active sentences of 93-121 months on the kidnapping charge and 82-102 months imprisonment on the remaining two charges. Defendant appeals.
II. Double Jeopardy
In his first argument, defendant contends that his conviction for first-degree kidnapping should be vacated because the element of restraint required to support the kidnapping conviction was not a separate and complete act, independent of and apart from the felony of robbery with a dangerous weapon. We disagree.
A person is guilty of kidnapping if he unlawfully confines, restrains, or removes an individual from one place to another without their consent, "if such confinement, restraint or removal is for the purpose of: . . .(2) Facilitating the commission of any felony. . . ." N.C. Gen. Stat. § 14-39 (2005).
The North Carolina Supreme Court has stated 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." State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). However, since Fulcher, the "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 underlying felony itself." State v. Muhammad, 146 N.C. App. 292, 295, 552 S.E.2d 236, 237 (2001). "Evidence that a defendant increased the victim's helplessness and vulnerability beyond what was necessary to enable the robbery or rape is sufficient to support a kidnapping charge." Id. (citing State v. Beatty, 347 N.C. 555, 559, 495 S.E.2d 367, 369-70 (1998)).
In this case, Wojtowicz was approached in a parking lot, ordered to get back into her car, held at gunpoint, and instructed to give any money she had to the two men. Wojtowicz did as she was told and offered the men "whatever they wanted" in order to get away. Instead of accepting her property and releasing her, the men instead drove Wojtowicz around Charlotte at gunpoint for approximately an hour, during which time they told her to remove her shirts. The forced removal of Wojtowicz's shirts was not an inherent, inevitable part of the robbery. Partial nudity increased Wojtowicz's "helplessness and vulnerability beyond that necessary to enable the robbery." Muhammad, 146 N.C. App. at 295, 552 S.E.2d 236 at 237. Under the circumstances, a jury could reasonably find that the confinement, restraint, or removal was a separate and complete act independent of and apart from the robbery and exposed Wojtowicz to greater danger than that inherent in the underlying felony itself. This argument is without merit.
III. Motion to Suppress
In his second argument, defendant contends that the trial court erred in denying the pretrial Motion to Suppress the out-of-court and potential in-court identifications. We disagree.
"In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make. . . ." N.C.R. App. P. 10(b)(1) (2007). See State v. Tutt, 171 N.C. App. 518, 615 S.E.2d 688 (2005); State v. Oglesby, ___ N.C. ___, 648 S.E.2d 819 (2007) (holding that the 2003 amendments to N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) (2005), which purported to eliminate the requirement that the objection be renewed at trial in order to preserve the issue for appellate review, were unconstitutional).
After the court denied defendant's pretrial motion to suppress the identifications, defendant failed to renew the objections at trial. Pursuant to N.C.R. App. P. 10(b)(1), this issue is not properly preserved for appellate review and is dismissed.
IV. Motion to Dismiss
In his final argument, defendant contends that the trial court erred in denying his motion to dismiss both felony charges at the close of the State's evidence and his renewed motion at the close of all the evidence because there was insufficient evidence to establish that defendant was in fact the perpetrator. We disagree.
"Our standard of review on a motion to dismiss based on insufficiency of the evidence is the substantial evidence test." State v. Jones, 110 N.C. App. 169, 177, 429 S.E.2d 597, 602 (1993). "The substantial evidence test requires a determination that there is substantial evidence (1) of each essential element of the offense charged, and (2) that defendant is the perpetrator of the offense." Id., 429 S.E.2d at 602. "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, 78-79, 265 S.E.2d 164, 169 (1980). "In ruling on a motion to dismiss, the evidence must be considered by the court in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn from that evidence." State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387-88 (1984).
Wojtowicz testified that she saw defendant's face on several occasions. First, when the two men approached, Wojtowicz was able to see defendant's uncovered face in the light of a street lamp as he stood approximately four feet away. Second, during the hour spent in the car with the men, Wojtowicz was able to view defendant's face on multiple occasions as he leaned forward to speak to his companion or to her, and when the car was stopped to change drivers. Finally, Wojtowicz viewed defendant's profile and face as she stood at the automated teller machine.
Upon the officers' arrival at the CiCi's parking lot, Officer York pursued defendant. Officer York never lost sight of him during a 200-yard chase. Defendant was the man apprehended by Officer York and positively identified by Wojtowicz. Taken in the light most favorable to the State, testimony by the victim and the officer established that defendant was the man who held a gun to Wojtowicz' head.
The State presented substantial evidence that defendant was the perpetrator of the crimes. The trial court did not err in denying defendant's Motions to Dismiss. This argument is without merit.
The remaining assignments of error asserted in the record on appeal, but not argued in the defendant's brief, are deemed abandoned. N.C.R. App. P. 28(b)(6) (2007).
NO ERROR as to trial;
DISMISSED as to suppression issue.
Judges BRYANT and GEER concur.
Report per Rule 30(e).