State v. Anderson

• Decision Date: 20 February 2007
• Docket Number: No. COA05-1520.,COA05-1520.
• Citation: 640 S.E.2d 797
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Davon Jamar ANDERSON, Defendant.

640 S.E.2d 797

STATE of North Carolina v. Davon Jamar ANDERSON, Defendant.

No. COA05-1520.

Court of Appeals of North Carolina.

February 20, 2007.

Appeal by defendant from judgments entered 5 May 2005 by Judge James C. Spencer, Jr. in Wake County Superior Court. Heard in the Court of Appeals 23 August 2006.

Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.

McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and Kirby H. Smith, III, New Bern, for defendant-appellant.

GEER, Judge.

Defendant Davon Jamar Anderson appeals from his convictions for one count of assault with a deadly weapon with intent to kill inflicting serious injury, one count of first degree burglary, three counts of robbery with a dangerous weapon, and six counts of first degree kidnapping. On appeal, defendant argues primarily that the trial court erred by denying his motion to dismiss the kidnapping charges for insufficiency of the evidence. Because we conclude that the State presented sufficient evidence to permit a jury to conclude that none of the victims was released by the defendant in a safe place and that each victim was subject to an act of confinement, restraint, or removal independent of that inherent in armed robbery and burglary, we disagree. Since we have found defendant's other assignments of error to be without merit, we uphold his convictions and sentence.

Facts and Procedural History

The State's evidence tended to show the following facts. Tamara Edwards lived in a rented house at 4613 Windmere Chase in Raleigh with her twelve-year-old son, D.E.; her seven-year-old daughter, C.E.; Edwards' friend, Donyelle Norris; and Norris' four-year-old daughter, D.N. Edwards' boyfriend, Aaron Richards, also lived there. At about 10:00 p.m. on the evening of 12 September 2004, the children were asleep in their bedrooms, Norris was in her bedroom, and Edwards and Richards were in their bedroom. When the doorbell rang, Richards went downstairs to answer the door. Through the door's window, he saw a person standing on the stoop holding a pizza box. Although no one in the household had ordered a pizza, Richards, assuming the pizza delivery man was at the wrong address, opened the door so that he could give directions.

As soon as Richards opened the door, the man on the stoop dropped the pizza box and entered the house. He was followed by defendant, who was wearing a black mask and had been standing unseen by the side of the house. Both intruders brandished guns and demanded drugs, money, and valuables from Richards. When Richards replied that he had nothing of value to give them, defendant put his gun in Richards' back and directed him upstairs to the bedroom he shared with Edwards. Defendant then took about $30.00 out of Richards' wallet, which was sitting on the dresser.

Meanwhile, the other intruder, whose name was Antonio Teasley, woke the sleeping children and assembled all the occupants of the house except for Richards in Norris' bedroom. He then demanded money from Edwards and Norris. When defendant brought Richards down the hallway to Norris' bedroom, Richards claimed—in an attempt to draw defendant and Teasley away from the house—that he had money at another location. After conferring, the intruders agreed that Teasley would go with Richards to get the money, while defendant would stay at the house and guard the women and children.

After Richards and Teasley left, defendant began searching the house while continuing to demand money from the women. When the women insisted that they had none, defendant directed Edwards to begin filling trash bags with valuables, including Edwards' purse collection and a camcorder. He also took some jewelry from Edwards. He then tied the women's hands behind their backs with cord.

Meanwhile, Teasley conducted Richards at gunpoint downstairs and outside to the car in which Teasley and defendant had arrived. Teasley directed Richards to the passenger side, while he got in the driver's side. Teasley drove with the gun in his lap, while Richards used his cell phone to call Kenneth Kirby, Edwards' brother-in-law. He asked Kirby to "bring the money" and meet at a Food Lion near Kirby's house. Teasley and Richards drove to the Food Lion, and both men got out of the car to wait for Kirby. When Kirby arrived, Richards and he were able to overpower Teasley and take his gun. Kirby and Richards then forced Teasley into Kirby's car, and the three men returned to 4613 Windmere Chase.

When they arrived, they parked around the corner so defendant could not see that they had arrived in a different car. Richards knocked on the front door of the house. Defendant put his gun in Edwards' back and walked her down the stairs to answer the door. When defendant opened the door, he asked Richards about the money. Richards replied that Teasley was outside in the car, that he had the money, and that he was "ready to go." Defendant held Edwards and the gun with one hand and began trying to search Richards with the other, but Richards lunged at him and grabbed at the hand that held the gun. During the struggle, defendant shot Richards twice in the chest, once in the back, and once in the arm.

Defendant left Richards lying near the front door and fetched Norris from upstairs, leaving the children by themselves. He then forced Norris and Edwards into the garage at gunpoint. As they entered the garage, Edwards tripped and fell to the ground, blacking out as she did so. Defendant's gun went off as Edwards tripped, but the bullet lodged harmlessly in a car in the garage. Believing, however, that Edwards had been shot, defendant and Norris went back to the front of the house. As he was bringing Norris towards the front door, defendant heard Richards, who was still conscious, calling the police on his cell phone. Defendant shot his gun into the air two more times and then ran out the back door.

Defendant was later apprehended and charged with one count of assault with a deadly weapon with intent to kill inflicting serious injury, one count of first degree burglary, three counts of robbery with a dangerous weapon, and six counts of first degree kidnapping. Following a jury trial in May 2005, defendant was convicted on all counts. After defendant stipulated that his prior record level was III, the trial court imposed consecutive sentences as follows: 28 to 43 months on the assault conviction, 96 to 125 months on the first degree burglary conviction, 96 to 125 months for the consolidated robbery convictions, and 116 to 149 months for the consolidated kidnapping convictions. He filed a timely appeal to this Court.

Motion to Dismiss

Defendant argues on appeal that the trial court erred by denying his motion to dismiss the charges against him for insufficiency of the evidence. Although defendant assigned error with respect to each of the charges brought, he confined the argument in his brief to the first degree kidnapping charges. We, accordingly, do not examine the trial court's denial of defendant's motion to dismiss the other charges. N.C.R.App. P. 28(b)(6) ("Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.").

In ruling upon a motion to dismiss, the trial court must determine if the State has presented substantial evidence of each essential element of the offense. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied, 537 U.S. 1006, 123 S.Ct. 488, 154 L.Ed.2d 404 (2002). "`Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion.'" Id. (quoting State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001), cert. denied, 535 U.S. 1114, 122 S.Ct. 2332, 153 L.Ed.2d 162 (2002)). In considering the motion, the trial court must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence, and resolving any contradictions in favor of the State. Id., 561 S.E.2d at 256.

Under N.C. Gen.Stat. § 14-39(a) (2005), a defendant is guilty of kidnapping if he "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," for one of four specified purposes, including "(1) Holding such other person for a ransom or as a hostage or using such other person as a shield; or (2) Facilitating the commission of any felony . . .; or (3) Doing serious bodily harm to or terrorizing the person. . . ." For the defendant to be convicted of first degree kidnapping, the State must also prove one of three additional elements: that the person kidnapped (1) was not released in a safe place, (2) was seriously injured, or (3) was sexually assaulted. N.C. Gen.Stat. § 14-39(b). In the absence of one of the elements set forth in N.C. Gen.Stat. § 14-39(b), the defendant is guilty of second degree kidnapping. Id.

Here, defendant argues that the State offered no evidence of the elements listed in § 14-39(b). The State relied upon the first element: the failure to release the victims in a safe place. This Court has recently held that a "release" is more than the mere "relinquishment of dominion or control over a person." State v. Love, ___ N.C.App. ___, ___, 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 ___, 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 "defendants may...