State v. Ackerman

• Decision Date: 03 July 2001
• Docket Number: No. COA00-672.,COA00-672.
• Citation: 551 S.E.2d 139,144 NC App. 452
• Parties: STATE of North Carolina v. Vearl ACKERMAN.
• Court: North Carolina Court of Appeals

551 S.E.2d 139

144 NC App. 452

STATE of North Carolina v. Vearl ACKERMAN.

No. COA00-672.

Court of Appeals of North Carolina.

July 3, 2001.

Attorney General Michael F. Easley, by Assistant Attorney General Mark J. Pletzke, for the State.

Assistant Public Defender Marc D. Towler for defendant.

TYSON, Judge.

Vearl Ackerman ("defendant") appeals a judgment entered upon convictions of first-degree sexual offense, first-degree kidnapping, assault on a female, assault with a deadly weapon, injury to personal property, and communicating threats. The convictions were consolidated for judgment, and the trial court sentenced defendant to a minimum of 307 months and a maximum of 378 months' imprisonment. We reverse defendant's conviction for first-degree kidnapping. We find no error in the judgment entered on all other charges.

Facts

Defendant and the prosecuting witness, Cathy Hill Cook ("Cook"), were involved in a brief romantic relationship from April to June 1998. Defendant and Cook did not see each other from June until September 1998. On 26 September 1998, defendant telephoned Cook to invite her to dinner at his home. Cook arrived at defendant's apartment around 7:00 p.m. during her work break. Two mutual friends of defendant and Cook were present at defendant's home. The four had a conversation about a band that was to perform that evening at a local bar, the Comet Grill. Defendant stated that he intended to go. The friends were unsure if they would attend.

The friends left defendant's apartment after Cook finished eating dinner. Cook testified that defendant began to kiss her and make sexual advances toward her when they were alone. Cook rebuked defendant's advances, upon which defendant told Cook to leave. Cook left, and returned to work.

At approximately 11:00 p.m. that evening, Cook arrived at the Comet Grill. She parked her vehicle across the street from the bar, in a parking lot adjacent to defendant's apartment. Cook entered the bar, and did not see the mutual friends who had been with her and defendant earlier that evening. Defendant was at the bar. Cook ordered a glass of wine, and spoke with defendant for a few minutes.

Subsequently, Cook went outside to speak with some friends, including a male friend. Cook testified that defendant came outside and told her to "get [her] butt back inside." When Cook re-entered the bar, defendant "grabbed [her] by the collar" and told her that she had "embarrassed him" and that she needed to "sit down and shut up or else."

Shortly thereafter, Cook attempted to leave the bar. Cook testified that defendant physically grabbed her, pushed her into the bar, and ordered her to pay the bill. Cook testified she just "grabbed a handful of money out of [her] pocket and handed it to [defendant] and left." Cook testified that she left the bar alone, and went to her vehicle, parked across the street. Cook entered her vehicle and began to drive out of the parking lot.

Cook testified that defendant ran towards her vehicle and jumped inside through the open driver's side window. While inside the vehicle, defendant kicked the key until it broke off in the ignition. Defendant also kicked the gear shift into the park position. Cook testified that she reached for the door handle to exit the vehicle, but that defendant "grabbed [her] hand and ... bit [her] really hard" and "wouldn't let go." Cook further testified that defendant then beat her with a full beer bottle about the head, face, chest, side, knees, and back.

Cook further testified that defendant held the beer bottle at her throat and told her he was "going to kill [her]," and that she was "going to die tonight." Defendant continued to choke Cook and beat her with the bottle, stating that she was going to die "for everything that [she'd] done," and that she would "never see [her] kids again." Cook testified that she tried to exit the vehicle, but that defendant was physically restraining her. She stated, "if I fought him, it got worse."

Cook stated that she pretended to pass out so that defendant would cease beating her. She testified that she let her head fall over into defendant's lap as though she were unconscious. Defendant unzipped his pants and forced his penis into Cook's mouth. Cook testified that defendant then slammed his hand onto her ear so hard that she sat upright. Defendant then began to choke Cook with both hands, pushing her back between the vehicle seats. Cook testified that when she was at the point where she could no longer breath, defendant stopped choking her and stated, "I'm not going to kill you now. First I'm going to beat you some more and I'm going to break this bottle and cut your face up; and, I'm going to rape you... tonight we're going to die together."

Cook testified that defendant picked her up and put her on top of him, stating that he was going to rape her. At this point, Cook opened the driver's side door and "fell out" of the vehicle. She ran towards the Comet Grill. Defendant continued to shout "I will kill you ... I know where you live."

Cook ran into the bar screaming that defendant had beat her and tried to kill her. The bar owner, Jenny Wicker ("Wicker"), estimated that 45 minutes had lapsed between the time Cook initially left the bar and when she returned. Wicker testified that Cook was "hysterical and disheveled" and "asked if someone would take her home." Either Wicker or her husband called 911. The fire department was the first to respond to the call. Cook testified that the fire department wanted her to go to the hospital, but she told them that she wanted to talk to the police first.

Cook waited at the bar for the police to arrive, whereupon she told the officers what had transpired. Cook's daughter also arrived at the scene. The officers were able to start Cook's car with a pair of pliers. Cook's daughter then drove Cook to the hospital. The two waited in the hospital emergency room approximately two hours. Cook testified that at 5:00 a.m., she "had enough and just wanted to go home." She left the hospital without seeing a doctor and visited her physician the next day.

The State introduced several photographs of bite marks, scars, swelling, and bruises Cook sustained in the struggle with defendant. Cook testified that she continues to think about the incident "everyday of [her] life and every night." Cook stated that she is in therapy to help her deal with the incident.

Defendant moved to dismiss all charges at the close of the State's evidence. The trial court denied the motions. Defendant did not present any evidence. Defendant renewed his motions to dismiss at the close of all evidence, which motions were denied.

On 8 December 1999, the jury returned guilty verdicts as to all charges: first-degree sexual offense; first-degree kidnapping; assault on a female; assault with a deadly weapon; injury to personal property; and communicating threats. The trial court entered judgment thereon on 8 December 1999. Defendant appeals.

Defendant argues that the trial court erred: (1) in denying his motion to dismiss the charge of first-degree kidnapping; (2) by instructing the jury on first-degree sexual offense based on the infliction of serious personal injury; (3) by denying defendant's motion to dismiss the charge of assault on a female; (4) in allowing the prosecution to make a statement in its opening argument about defendant's evidence; and (5) in denying defendant's motion to dismiss the charge of first-degree sexual offense for insufficiency of the short-form indictment. We agree with defendant that failure to dismiss the charge of first-degree kidnapping was error. We find no error as to all other issues.

A. First-degree kidnapping

Defendant argues that the trial court erred in denying his motion to dismiss the charge of first-degree kidnapping. Specifically, defendant argues the evidence failed to show confinement or restraint beyond that required to establish the crime of first-degree sexual offense. We agree.

First-degree kidnapping requires the unlawful restraint or confinement of a person for the purpose of committing a felony. N.C. Gen.Stat. § 14-39(a)(2). It was not the legislature's intent, however, "to make a restraint which was an inherent, inevitable element of another felony, such as armed robbery or rape, a distinct offense of kidnapping thus permitting conviction and punishment for both crimes." State v. Irwin, 304 N.C. 93, 102, 282 S.E.2d 439, 446 (1981). The restraint required for kidnapping must be an act independent of the intended felony. State v. Harris, 140 N.C.App. 208, 213, 535 S.E.2d 614, 617, appeal dismissed, disc. review denied, 353 N.C. 271, 546 S.E.2d 122 (2000) (citation omitted); State v. Fulcher, 294 N.C. 503, 524, 243 S.E.2d 338, 352 (1978).

"The test of the independence of the act is `whether there was substantial evidence that the defendant[ ] restrained or confined the victim separate and apart from any restraint necessary to accomplish the acts of rape [, statutory sex offense, or crime against nature].'" Harris at 213, 535 S.E.2d at 618 (quoting State v. Mebane, 106 N.C.App. 516, 532, 418 S.E.2d 245, 255,disc. review denied, 332 N.C. 670, 424 S.E.2d 414 (1992)). The restraint or asportation of the victim must be a complete act, separate from the sexual assault. State v. Coats, 100 N.C.App. 455, 459-60, 397 S.E.2d 512, 515-16 (1990), disc. review denied, 328 N.C. 573, 403 S.E.2d 515 (1991) (citation omitted); see also State v. Walker, 84 N.C.App. 540, 543, 353 S.E.2d 245, 247 (1987)

(while some restraint is inherent in a sexual assault, there must be some separate, independent restraint, confinement, or asportation of the victim in order to constitute kidnapping).

Thus, in Harris, we held that restraint independent of the underlying felony was present where the defendant fraudulently coerced the victim into remaining with him in a car so that he could drive her to a secluded place and sexually assault her. Harris, 140...