Opinion
No. COA10-1448
Filed 17 May 2011 This case not for publication
Appeal by Defendant from judgment entered 27 May 2010 by Judge Wayland J. Sermons, Jr., in Washington County Superior Court. Heard in the Court of Appeals 13 April 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Kathleen M. Waylett, for the State. Sue Genrich Berry for Defendant.
Washington County No. 09 CRS 202.
I. Facts and Procedural History
On 23 March 2009, a Washington County grand jury indicted Defendant Tracy Keith Riddick on charges of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and first-degree kidnapping. In a separate indictment, Defendant was alleged to be an habitual felon. The State later dismissed the conspiracy charge.
Following a trial at the 24 May 2010 Criminal Session of the Washington County Superior Court, the jury found Defendant guilty of robbery with a dangerous weapon and first-degree kidnapping. After the jury announced its verdict, Defendant admitted his status as an habitual felon. Defendant then filed two Motions for Appropriate Relief, both of which were denied. The trial court determined that Defendant was a Prior Record Level VI offender and, after finding that the mitigating factors outweighed the aggravating factors, consolidated the convictions and sentenced Defendant to a term of 132 to 168 months in prison with credit for time spent in confinement prior to the judgment. Defendant appeals.
The State's evidence at trial tended to show the following: On the afternoon of 18 February 2009, Dr. Milton Westberg was working in the woodshop of his home on Wilson Street in Plymouth, North Carolina, when he heard a voice behind him say, "Put up your hands." When Dr. Westberg turned around, he saw a black man wearing a ski mask and pointing a gun at him. The man put the gun to Dr. Westberg's head and said he would kill Dr. Westberg unless he gave the man all of his money. After emptying Dr. Westberg's pockets, the gunman then pulled Dr. Westberg's sweatshirt over his head and marched Dr. Westberg to the house with the gun at his back.
Once inside, the gunman used Dr. Westberg's belt to tie his hands behind his back and a telephone wire to bind his feet. He made Dr. Westberg lie face down, put the gun to Dr. Westberg's head, and said, "If you don't give me all your money, I'm going to kill you." Dr. Westberg told the gunman there was money in the freezer, but when the gunman checked the freezer, there was no money. Dr. Westberg then showed the gunman two tin containers of change. The gunman took the containers and forced Dr. Westberg into the basement, telling him to be quiet and not come out for half an hour or else the gunman would kill him. The gunman locked the basement door. Dr. Westberg managed to free his hands and escape through a crawlspace into the carport. Once outside, Dr. Westberg ran to the neighbors and called 911.
Upon learning that a large amount of change had been taken from Dr. Westberg, Plymonth Police Department Captain Willie Williams contacted local businesses. A Food Lion cashier reported that a man had come in 30 minutes earlier with a large amount of change. Capt. Williams then talked to Robert Bonds, a man who had done lawn and garden work for the Westbergs on four to six occasions in the previous months. The Food Lion cashier identified Bonds from a photo lineup as the man who had brought in the change. However, Dr. Westberg testified he knew the gunman was not Bonds because he would have recognized Bonds' voice.
Bonds testified that he was scheduled to work at the Westberg home on the morning of the robbery, but overslept and did not go. Around noon, Defendant came to Bonds' house with a rock of crack cocaine which the two men smoked. Defendant began asking questions about Dr. Westberg, such as who would be at the house that day and if Dr. Westberg kept money at the house. Bonds told Defendant that Dr. Westberg had recently loaned Bonds $100 and also described the Westberg home. Defendant then left on foot.
Defendant returned to Bonds' house around 3:00 p.m. and asked Bonds to accompany him to a grocery store. When Bonds got into Defendant's truck, he saw change in a brown paper bag. Defendant refused to enter the grocery store, so Bonds took the change to a coin machine, which totaled the change and printed a receipt. Bonds took the receipt to a cashier and received $80. After Defendant and Bonds left the store, they purchased more crack cocaine. Defendant then confessed to Bonds that he had robbed Dr. Westberg.
Defendant also offered evidence, summarized as follows: Defendant's stepson testified that Defendant had been at home on the day of the robbery. He stated that Defendant had played a video game with him around noon and then had cooked food for them. A neighbor of Defendant's testified that he had spoken with Defendant in the midafternoon about 3:00 p.m. Defendant's sister-in-law testified that he had helped her move on the evening of the robbery, been arrested at her home, and owned a ski mask.
II. Discussion
On appeal, Defendant argues that the trial court erred in denying his motion to dismiss the first-degree kidnapping charge for insufficient evidence, violated his constitutionally protected right to a unanimous jury verdict in the jury instruction on the first-degree kidnapping charge, and failed to comply with N.C. Gen. Stat. § 15A-1420. As discussed below, we find no error.
A. Motion to Dismiss
Defendant first argues that the trial court erred by denying his motion to dismiss the first-degree kidnapping charge for insufficient evidence of his failure to release the victim in a safe place. We disagree.
When a defendant moves for dismissal on the grounds of insufficient evidence, "the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). Substantial evidence is evidence that "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). If there is substantial direct or circumstantial evidence to support a finding that the defendant committed the offense, the motion to dismiss should be denied. State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). The trial court "is concerned only with sufficiency of the evidence to carry the case to the jury and not its weight." State v. Mercer, 317 N.C. 87, 96-97, 343 S.E.2d 885, 891 (1986). Further, evidence is to be considered in the light most favorable to the State, and the State is entitled to every reasonable inference. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
The State was required to prove every element of first-degree kidnapping, as defined by N.C. Gen. Stat. § 14-39:
(a) 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 years without the consent of a parent or legal custodian of such person, shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:
. . .
(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; []
. . .
(b) There shall be two degrees of kidnapping as defined by subsection (a). If 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 and is punishable as a Class C felony. 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 and is punishable as a Class E felony.
N.C. Gen. Stat. § 14-39 (2009). Here, the State proceeded on a theory that Defendant restrained Dr. Westberg to facilitate the robbery and Defendant's flight therefrom, and that Defendant did not release Dr. Westberg in a safe place. Thus, the State contended that Defendant had committed first-degree kidnapping. Defendant asserts that there was insufficient evidence that he failed to release Dr. Westberg in a safe place, noting that Dr. Westberg was left bound in the basement of his own home and was subsequently able to escape his bonds and the basement. We are unpersuaded.
We rejected a similar argument by the defendant in State v. Anderson, 181 N.C. App. 655, 659-60, 640 S.E.2d 797, 801, disc. review denied, 361 N.C. 430, 648 S.E.2d 846 (2007), explaining that
[t]his Court has recently held that a "release" is more than the mere "relinquishment of dominion or control over a person." State v. Love, 177 N.C. App. 614, 626, 630 S.E.2d 234, 242, disc. review denied, 360 N.C. 580, 636 S.E.2d 192-93 (2006). Rather, a "'release' inherently contemplates an affirmative or willful action on the part of a defendant." Id. at 626, 630 S.E.2d at 242. The Love Court stated that the defendants did not affirmatively or willfully release the victims when they bound the victims to chairs in their own home, ransacked the house for valuables, re-checked the bindings immediately before leaving, and threatened to return. The Court reasoned that although "[the] defendants may have physically left the premises, . . . through their active intimidation, they left the victims with a constructive presence." Id. at 626, 630 S.E.2d at 242.
In Anderson, we held that the State's evidence was sufficient to allow the jury to consider whether the victims had been released in a safe place where the defendant fled, leaving the adult victims unsure of the defendant's whereabouts, and "simply left the [victim] children upstairs in the same room where they were initially confined[.]" Id. at 660, 640 S.E.2d at 802; see also State v. Morgan, 183 N.C. App. 160, 645 S.E.2d 93 (2007) (upholding a first-degree kidnapping charge where the defendants left the victims bound in their hotel room), appeal dismissed, disc. review denied, 362 N.C. 241, 660 S.E.2d 536 (2008).
Here, Defendant left Dr. Westberg not only bound in his own home, but locked in the basement. Defendant also told Dr. Westberg to stay in the basement for half an hour or Defendant would shoot him. There was no evidence that Defendant believed Dr. Westberg would be able to loosen his bonds or was aware of the narrow passageway through which Dr. Westberg eventually escaped the basement. Defendant took no affirmative or willful action whatsoever to release Dr. Westberg. In the light most favorable to the State, the evidence was sufficient to permit a reasonable juror to conclude that Defendant did not release Dr. Westberg in a safe place. This argument is overruled.
B. Jury Instructions
Defendant next argues that the trial court violated his statutory right to a unanimous jury verdict on the first-degree kidnapping charge. We disagree.
We first note Defendant failed to preserve this issue for appellate review under N.C. R. App. P. 10(a)(2), which required defense counsel to object to the jury instructions before the jury retired to deliberate. Defense counsel objected to the trial court's giving the first-degree kidnapping instruction on grounds of insufficient evidence, but never raised any issue regarding unanimity or the specific wording of the instruction. Further, Defendant does not allege plain error. However, "when a trial court acts contrary to a statutory mandate and a defendant is prejudiced thereby, the right to appeal the court's action is preserved, notwithstanding [the] defendant's failure to object at trial." State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985). Defendant argues the trial court's jury instructions on first-degree kidnapping violate N.C. Gen. Stat. § 15A-1237(b) (2009), which mandates that "[t]he verdict must be unanimous, and must be returned by the jury in open court."
Here, Defendant contends the trial court erred in instructing that the State needed to prove that he confined, restrained, or removed Dr. Westberg "for the purpose of facilitating his commission of or flight after committing robbery with a dangerous weapon[.]" (Emphasis added). Defendant asserts the use of the word "or" permitted a non-unanimous verdict because members of the jury could have voted to convict based on either facilitating or flight without agreeing on the same element.
Defendant relies heavily on the discussions of disjunctive instructions in State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986) and State v. Lyons, 330 N.C. 298, 412 S.E.2d 308 (1991). "Submission of an issue to the jury in the disjunctive is reversible error if it renders the issue ambiguous and thereby prevents the jury from reaching a unanimous verdict." Diaz, 317 N.C. at 553, 346 S.E.2d at 494. Further, a guilty verdict "following submission in the disjunctive of two or more possible crimes to the jury in a single issue is ambiguous and therefore fatally defective." Id. (emphasis added). However, if the disjunctive instruction concerns only an element of an offense, then the instruction is not fatally flawed. See State v. Hartness, 326 N.C. 561, 565-66, 391 S.E.2d 177, 179-80 (1990).
There is a critical difference between the lines of cases represented by Diaz and Hartness. The former line establishes that a disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense. The latter line establishes that if the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.
Lyons, 330 N.C. at 302-303, 412 S.E.2d at 312.
Here, the instruction given by the trial court allowed the jury to find Defendant guilty if his confinement, restraint or removal of Dr. Westberg had either facilitated Defendant's robbery with a dangerous weapon or his flight after committing robbery with a dangerous weapon. Neither facilitating one's own commission of robbery with a dangerous weapon nor flight after committing robbery with a dangerous weapon are separate offenses under our General Statutes. However, each is an element of the offense of first-degree kidnapping. Thus, the trial court's instructions are governed by Hartness, and the trial court did not err in instructing the jury. This argument is overruled.
C. Motion for Appropriate Relief
Defendant's final argument is that the trial court erred by denying his Motion for Appropriate Relief ("MAR") from the bench rather than entering a separate written order. We disagree.
Defendant actually filed two Motions for Appropriate Relief, the first on 26 May 2010, and the second on the following day. They are identical, except that the second motion includes a single additional sentence: "6. There is a sound legal basis for this Motion and [it] is made in good faith."
Section 15A-1420 of our General Statutes governs MARs and sets out the procedure for the trial court to hear the motions. The relevant portions of the statute provide:
(5) If an evidentiary hearing is held, the moving party has the burden of proving by a preponderance of the evidence every fact essential to support the motion.
(6) A defendant who seeks relief by motion for appropriate relief must show the existence of the asserted ground for relief. Relief must be denied unless prejudice appears, in accordance with G.S. 15A-1443.
(7) The court must rule upon the motion and enter its order accordingly. When the motion is based upon an asserted violation of the rights of the defendant under the Constitution or laws or treaties of the United States, the court must make and enter conclusions of law and a statement of the reasons for its determination to the extent required, when taken with other records and transcripts in the case, to indicate whether the defendant has had a full and fair hearing on the merits of the grounds so asserted.
N.C. Gen. Stat. § 15A-1420(c) (2009).
Defendant contends that the trial court erred in failing to enter a written order following the evidentiary hearing on his MAR. This Court has recently held that
[t]he plain language of N.C. Gen. Stat. § 15A-1420(c) contains no reference to written findings, and the absence of a written order does not frustrate our review of the trial court's denial of [a] defendant's MAR, as the transcript contains the findings and conclusions the trial court orally made in open court. Consequently, we hold that while the best practice is for the trial court to enter a written order containing its findings of fact and conclusions of law, the trial court is not required to make written findings of fact or conclusions of law when it enters an order on a defendant's MAR.
State v. Williamson, ___ N.C. App. ___, ___, 698 S.E.2d 727, 737 (2010) (emphasis in original).
Defendant's MAR alleged various grounds to overturn his conviction, but focused primarily on his contention that juror misconduct deprived him of a fair and impartial trial. Specifically, Defendant alleged that one of the jurors "failed to honestly answer material questions propounded to him" and was seen speaking to Dr. Westberg and his wife in the courthouse hall during the trial. The trial court held an evidentiary hearing on the matter and then made the following ruling in open court:
THE COURT: All right. In this matter the Court is going to deny your motion for a new trial based on juror misconduct.
I'm going to find that [D]efendant has failed to show by a preponderance of the evidence that there was any contact or conversation between the victim and a juror and that the — in addition the defendant has failed to show — carry the burden of proof to show any actual prejudice from any — even if it did occur — brief, public, and non-prejudicial meetings between the juror and other parties, so that motion is denied.
The trial court's comments explain the basis for its ruling and the absence of written findings and conclusions does not frustrate our review on appeal. Under Williamson, the trial court was not required to enter a written order. We overrule this argument, and conclude that Defendant received a fair trial free of error.
Defendant does not argue any error in the trial court's substantive ruling on his MAR.
No error.
Judges STEELMAN and HUNTER, JR., ROBERT N., concur.
Report per Rule 30(e).