STATE v. ANDERSON, 163 N.C. App. 783 (2004)

Onslow County Nos. 01 CRS 055447, 02 CRS 010127, 02 CRS 010129-32.

Alvin Levarr Anderson (defendant) appeals judgments dated 6 December 2002 entered consistent with a jury verdict finding him guilty in Onslow County of first-degree kidnapping, assault with a deadly weapon inflicting serious injury, robbery with a dangerous weapon of a Chevrolet Celebrity automobile and in Bladen County of assault with a deadly weapon with intent to kill inflicting serious injury, attempted first-degree murder, first-degree kidnapping, robbery with a dangerous weapon, and felonious conspiracy to commit attempted first-degree murder. Upon motion by defendant, the court arrested judgment on the Onslow County robbery but denied the same motion as to the Bladen County first-degree kidnapping.

The evidence at trial showed that, on 21 August 2001, nineteen-year-old Robert Dinkins, the victim, left the home he shared with his friend Gregory Wright and Wright's girlfriend Bonita Bowie in Jacksonville, North Carolina to run some errands. Dinkins borrowed Wright's 1984 Chevrolet Celebrity in order to pick up his paycheck and pick up Bowie from work. On the way to pick up his check, Dinkins saw two young men whom he recognized from Club 108, his former place of employment. Dinkins identified the two men at trial as defendant and co-defendant Rashawn Hamilton. Dinkins pulled into the parking lot of the Circle K, whereupon the two men approached him and asked if he wanted to buy marijuana. Dinkins told the men he was agreeable to a purchase but did not have any money at the time.

Dinkins then proceeded to give the two young men a ride to the house of defendant's mother. On their arrival, Dinkins asked for a drink of water. Upon entering the house, defendant grabbed Dinkins from behind and began choking him. Dinkins passed out briefly. After regaining consciousness and realizing that defendant was stabbing him in the back, Dinkins tried to escape but was forced onto the floor by Hamilton. During the struggle, Dinkins was stabbed in the chest ten to fifteen times. Dinkins testified that defendant told Dinkins he was a snitch and would die in that house.

Defendant and Hamilton wrapped Dinkins in blankets, took the car keys from his pocket, and put Dinkins in the back seat of the Chevrolet Celebrity. Defendant was the driver of the vehicle and Hamilton was the front seat passenger. During the journey, Dinkins tried several times to pull himself up, but each time Hamilton would swing the knife at his chest. Dinkins testified that throughout the ride defendant stabbed him in the leg and threatened to cut his throat. Dinkins further testified that defendant repeatedly asked Hamilton, "Is he dead yet?"

After a one-and-a-half to two-hour car ride, defendant stopped the vehicle at an abandoned house in an area later determined to be Council, North Carolina, a remote section of Bladen County. Defendant and Hamilton dragged Dinkins through untrimmed vegetation to the back of the house. Defendant and Hamilton told Dinkins they would let him live if he agreed to conceal their identities and tell the police he had been assaulted by a hitchhiker. Dinkins testified that defendant and Hamilton told him to wait for two hours at that house and then to go and seek help for his injuries. Dinkins waited approximately twenty minutes before heading toward the front of the house to seek help. As Dinkins headed toward the road he heard the engine of the Chevrolet Celebrity approaching. Returning to the scene, defendant and Hamilton got out of the vehicle, and began choking Dinkins and punching him in the face. Hamilton then stabbed Dinkins in the throat with the knife. Defendant and Hamilton left in Wright's Chevrolet Celebrity when Dinkins pretended to be dead.

The issues are whether the trial court: (I) erred in denying defendant's motions to dismiss (A) the charges of robbery with a deadly weapon in Onslow County and Bladen County, (B) the charges of first-degree kidnapping in Onslow County and Bladen County, (C) the charge of attempted first-degree murder in Bladen County; and (II) committed reversible error in refusing to grant defendant's motion to arrest judgment on the conviction of first-degree kidnapping in Bladen County. Defendant argues the trial court erred in denying his motions to dismiss the charges of robbery with a dangerous weapon in Onslow and Bladen Counties. We note that defendant's argument in his brief to this Court is restricted to the charge of robbery with a dangerous weapon in Bladen County, as defendant properly acknowledges that the trial court arrested judgment on defendant's Onslow County robbery conviction.SeeN.C.R. App. P. 28(a) ("[q]uestions raised by assignments of error . . . but not then presented and discussed in a party's brief, are deemed abandoned").

With respect to the Bladen County robbery charge, defendant argues that the trial court should have granted his motion to dismiss because the evidence supported onlyoneconviction for having stolen the automobile.

At the close of the State's evidence, defendant moved for the dismissal of both robbery charges. After the trial court denied defendant's motion on the Onslow County robbery charge, defendant contended: "Your Honor, in that case we argue that [the Bladen County robbery charge] must merge with, or alternatively, . . . would have to be dismissed because . . . [i]f the Chevrolet Celebrity had already been taken, it couldn't be taken again." Defendant summarily renewed his motions to dismiss at the close of all the evidence, which the trial court denied.

Accordingly, defendant's motion on the Bladen County robbery charge was based on double jeopardy considerations.See State v.Cobb,150 N.C. App. 31,43,563 S.E.2d 600,609("the constitutional prohibition against double jeopardy requires that[, for convictions of both robbery with a dangerous weapon and the lesser-included offense of felonious larceny,] the defendant [must have] committed two separate and distinct takings"),disc. review denied,356 N.C. 169,568 S.E.2d 618(2002). If the evidence supported only one taking, i.e. only one robbery in this case, sentencing defendant for robberies in both Onslow and Bladen Counties would violate double jeopardy.SeeState v. Jordan,128 N.C. App. 469,473,495 S.E.2d 732,735-36(1998). Here, however, the trial court's arresting judgment on the Onslow County robbery charge thwarted any double jeopardy concerns and in essence complied with defendant's request to "merge" the charges. As such, this assignment of error is overruled. Defendant also contends the trial court erred in denying his motions to dismiss the charges of first-degree kidnapping in Onslow and Bladen Counties because the evidence was insufficient to convince a rational trier of fact of defendant's guilt beyond a reasonable doubt.

N.C. Gen. Stat. §14-39(a) provides:

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, or any other person under the age of 16 without the consent of a parent or legal guardian of such person shall be guilty of kidnapping if such confinement, restraint, or removal is for the purpose of . . . (1) facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; or (2) doing serious bodily harm to or terrorizing the person so confined, restrained, or removed or any other person.

N.C.G.S. §14-39(a) (2003). "[I]f the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first[-]degree." N.C.G.S. §14-39(b) (2003). InState v. Fulcher, the North Carolina Supreme Court recognized the possibility that two or more criminal offenses may arise from the same course of action.State v. Fulcher,294 N.C. 503,523-24,243 S.E.2d 338,351-52(1978). The Supreme Court also held that a conviction of kidnapping does not violate the constitutional prohibition against double jeopardy when the restraint involved constitutes a separate act independent of and apart from the other felony.Id.at 524, 243 S.E.2d at 352.

Defendant in the casesub judicecontends the kidnapping convictions were improper because the victim was not exposed to greater danger than that which was necessary to commit the offenses of assault with a deadly weapon with intent to kill inflicting serious injury, assault with a deadly weapon inflicting serious injury, attempted first-degree murder, and robbery with a dangerous weapon. Defendant argues that the restraint used by defendant to commit the robbery against the victim was not a separate, complete act independent of and apart from the robbery itself.

The evidence presented at trial showed that the keys and possession of the automobile were taken from Dinkins in Onslow County after Dinkins had been stabbed repeatedly and seriously injured by defendant. Defendant then forced Dinkins into the back seat of the Chevrolet Celebrity and proceeded to drive to Bladen County. At this point, robbery with a dangerous weapon and assault with a deadly weapon with intent to kill inflicting serious injury had already been committed. Dinkins testified that during the car ride he was stabbed repeatedly and that Hamilton swung the knife at him every time he tried to get up. This testimony was sufficient to justify the trial court's denial of defendant's motion to dismiss the charges of first-degree kidnapping in Onslow County. Defendant could have simply taken the keys to the vehicle and driven away. There was no need to remove or restrain the victim in order to commit the offenses that occurred in Onslow County.

On arrival in Bladen County, defendant took Dinkins to an abandoned house and left him in the dense vegetation behind the house. After telling Dinkins to wait two hours before seeking help, defendant returned approximately twenty minutes later and saw Dinkins as he attempted to reach the road. Defendant then punched Dinkins several times in the face and stabbed him in the throat before once again moving him to the back of the abandoned house and leaving him for dead in the dense vegetation.

This Court has held that evidence which shows 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). In the instant case, defendant's actions in Bladen County had the effect of increasing Dinkins' helplessness and vulnerability far beyond that which was necessary to commit the robbery. In addition, the evidence established there was a removal of Dinkins that occurred in Bladen County. Thus, the evidence presented was also sufficient to support the trial court's denial of defendant's motion to dismiss the charge of kidnapping in Bladen County. Defendant next challenges the trial court's denial of his motion to dismiss the charge of attempted first-degree murder. Defendant argues the evidence was insufficient to support the charge because there was no reasonable inference that defendant attempted to kill the victim. We disagree.

"A person commits the crime of attempted first-degree murder if he specifically intends to kill another person unlawfully; he does an overt act calculated to carry out that intent, going beyond mere preparation; he acts with malice, premeditation, and deliberation; and he falls short of committing the murder."State v. Cozart,131 N.C. App. 199,202-03,505 S.E.2d 906,909(1998). In the context of attempted first-degree murder, malice can be inferred by the intentional use of a deadly weapon.Statev. Peoples,141 N.C. App. 115,118,539 S.E.2d 25,28(2000). Premeditation has been defined as thought beforehand for some length of time, no matter how short.State v. Chavis,231 N.C. 307,311,56 S.E.2d 678,681(1949). Deliberation means that the act is done in a cool state of blood in furtherance of a fixed design to gratify a feeling of revenge or to accomplish some unlawful purpose, and does not mean brooding over the act or reflecting upon it for any appreciable length of time.Id.As to attempted first-degree murder, circumstances that may tend to prove premeditation and deliberation include: (1) lack of provocation by intended victim; (2) conduct and statements of the defendant both before and after the attempted killing; (3) threats made against the intended victim or victims by the defendant; and (4) ill will or previous difficulty between the defendant and the intended victim or victims.Cozart,131 N.C. App. at 202,505 S.E.2d at 909.

In the present case, the evidence was more than sufficient to support a reasonable inference that defendant intended to kill Dinkins. Defendant's intent to kill Dinkins can be inferred from his stabbing Dinkins ten to fifteen times in the chest, slitting his throat twice, stabbing him in the back and legs, and punching him in the face repeatedly. In addition, the fact that defendant drove a badly injured man for two hours to an abandoned house thereafter leaving him in the dense vegetation without making any attempt to seek medical attention could also lead to an inference that defendant intended to kill Dinkins. Further, the evidence tended to show that defendant threatened to kill Dinkins several times during the ordeal and that during the car ride to Bladen County, defendant asked Hamilton whether or not Dinkins was dead yet.

Defendant nevertheless asserts that any overt act he may have committed was done in self-defense. As any "contradictions and discrepancies are for the jury to resolve and do not warrant dismissal,"State v. Vause,328 N.C. 231,237,400 S.E.2d 57,61(1991), this argument is immaterial with regard to a motion to dismiss. Finally, defendant argues the trial court committed reversible error by failing to grant his motion to arrest judgment on the Bladen County first-degree kidnapping conviction. Defendant contends that he has been punished twice for committing the same offense in violation of the double jeopardy provisions of the Fifth Amendment of the United States Constitution. We disagree.

A motion to arrest judgment "`is proper when it is apparent that no judgment could be lawfully entered because of some fatal error appearing in (1) the organization of the court, (2) the charge made against the defendant . . ., (3) the arraignment and plea, (4) the verdict, or (5) the judgment.'"State v. McGaha,306 N.C. 699,702,295 S.E.2d 449,451(1982) (citation omitted). A "[j]udgment may be arrested when and only when some fatal error or defect appears on the face of the record proper."State v.McNeil,280 N.C. 159,162,185 S.E.2d 156,158(1971). Further, "[r]eview is ordinarily limited to the questions of whether an error of law appears on the face of the record proper and whether the judgment is regular in form."Id.

In this case, defendant argues Dinkins did not regain his free will until after the entire episode was over and therefore the kidnapping was one continuous action starting in Onslow County and ending in Bladen County. For the same reason that we have found two separate acts of kidnapping as explained in Issue I on defendant's motion to dismiss the kidnapping charges, we overrule this assignment of error.

No error.

Judges CALABRIA and ELMORE concur.