State v. Brinkley
| Decision Date | 19 February 2019 |
| Docket Number | No. COA18-435,COA18-435 |
| Citation | 823 S.E.2d 169 (Table) |
| Parties | STATE of North Carolina v. David Lee BRINKLEY |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Special Deputy Attorney General Christopher W. Brooks, for the State.
Kimberly P. Hoppin, for defendant-appellant.
David Lee Brinkley (Defendant) appeals from his convictions for First-Degree Sexual Offense and First-Degree Kidnapping. Additionally, we allow Defendant’s Petition for Writ of Certiorari to review the trial court’s Judicial Findings and Order for Sex Offenders.
The evidence presented at trial tends to show the following:
Defendant and the victim, V.B.1 , were married. On 29 July 2015, V.B. returned home from work to find Defendant had arranged for a date night. After Defendant and V.B. dined at a restaurant, Defendant insisted on stopping to buy a new SD card for his video camera. The pair returned home to watch a movie, and V.B. went to the bedroom to sleep. Defendant entered the room holding a pair of handcuffs, asking if V.B. "wanted to try something kinky." V.B. declined, but Defendant approached, and over V.B.’s protests, restrained her with the handcuffs and then tied V.B.’s hands and feet to the bed. Defendant punched V.B. in the head and told her that he would not kill her if she did what he said. Defendant brandished a BB gun resembling a pistol and repeatedly threatened to shoot V.B. At one point, Defendant shot the gun, hitting the wall by the side of V.B.’s head.
Defendant used a video camera to record portions of the incident. Footage from Defendant’s camera shown to the jury shows Defendant repeatedly threatening V.B.’s life telling her she "will die tonight" if she tries anything. Defendant is seen pointing the BB gun at V.B. and tells her he has just replaced the CO2 cartridge threatening to shoot her at close range, such that the shot would pierce her skin.
Defendant stated his original plan was to kill V.B. and then himself. Defendant turned on a laptop, and proceeded to question V.B. about various photographs and her social media activity. He claimed he would force V.B. to watch him kill himself as punishment for her "lying" and being "unfaithful" to him. He also threatened V.B. while she was tied to the bed with an ASP baton, of a type typically used by law enforcement officers, threatening to hit V.B. with it if she tried to move. Defendant placed the baton on the bed near V.B.
At some point, Defendant released V.B. to use the restroom. When she returned, he forced her to perform oral sex on him, while recording with the camera. Defendant then forced V.B. to watch while he made videotaped "last will and testaments." With V.B. once again tied to the bed and handcuffed, Defendant left the room, and returned with a hammer and extension cord. Defendant made a makeshift noose and began attempting to hang himself from a doorframe. While Defendant was distracted with his apparent suicide attempt, V.B. was able to escape her restraints and flee. Defendant pursued V.B. into the yard and attempted to drag her back to the house, but V.B. was able to escape to a neighbor’s home.
The neighbor, William Barham (Barham), was awakened by the sound of a woman screaming. The sound came from the front yard of the home Defendant shared with V.B. Barham left his home to investigate and saw Defendant, who threatened Barham with a gun. When Barham returned to his home, he found his mother with V.B. in the kitchen, and law enforcement officers arriving.
Officer Alan Lee (Officer Lee), the officer dispatched to Barham’s home, spoke with Barham and V.B. Officer Lee helped remove the handcuffs which were still on V.B.’s wrists. He called for backup and approached Defendant’s home. When Officer Lee came to the door, Defendant threatened to kill himself. Officer Lee could see a gun in Defendant’s hand, and implored Defendant not to hurt himself. Defendant let Officer Lee into the home, and Officer Lee took a BB gun from Defendant. Other officers soon entered the home, and Defendant was arrested and taken to the hospital.
Defendant was indicted for Second-Degree Kidnapping, Crime Against Nature, and First-Degree Sexual Offense. A superseding indictment was later entered, amending the charge of Crime Against Nature and upgrading the kidnapping charge to first-degree. At trial, the State voluntarily dismissed the charge of Crime Against Nature.
At the close of the State’s evidence, Defendant moved to dismiss the kidnapping and sex offense charges. After hearing the arguments of counsel, the trial court denied these motions. Defendant declined to present evidence.
The jury returned verdicts finding Defendant guilty of First-Degree Kidnapping and First-Degree Sexual Offense. Defendant then pleaded guilty to the aggravating factors of (1) using a deadly weapon and (2) taking advantage of a position of trust or confidence. As to First-Degree Sexual Offense, the trial court found these aggravating factors outweighed the mitigating factors and sentenced Defendant in the aggravated range to a minimum of 311 months and a maximum of 434 months. The trial court sentenced Defendant in the presumptive range for First-Degree Kidnapping to a minimum of 83 months and a maximum of 112 months.
Additionally, the trial court entered a written Judicial Findings and Order for Sex Offenders determining Defendant was convicted of a reportable conviction and further found the sex offense conviction was a sexually violent offense and an aggravated offense. The trial court therefore ordered Defendant to register as a sex offender for the remainder of his natural life and to enroll in lifetime Satellite-Based Monitoring (SBM).
Defendant gave notice of appeal from his criminal convictions in open court and his appeal of those convictions is before us under N.C. Gen. Stat. § 7A-27(b) and N.C. Gen. Stat. § 15A-1444. Defendant, however, did not timely appeal the trial court’s civil order requiring him to register as a sex offender and enroll in satellite-based monitoring, and has instead filed a Petition for Writ of Certiorari seeking review of this matter. We grant Defendant’s Petition.
The dispositive issues in this case are: (I) Whether there is sufficient evidence to support the denial of Defendant’s Motions to Dismiss the charges against him; (II) Whether there exists a sufficient factual basis to support Defendant’s guilty plea to the aggravating factor of use of a deadly weapon in sentencing for First-Degree Sexual Offense; and (III) Whether the trial court erred by classifying First-Degree Sexual Offense as an "aggravated offense" for purposes of triggering lifetime sex offender registration and Satellite-Based Monitoring.
Defendant first contends the trial court erred by denying his Motions to Dismiss the charges of First-Degree Sexual Offense and First-Degree Kidnapping. We disagree.
"This Court reviews the trial court’s denial of a motion to dismiss de novo ." State v. Smith , 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).
" " State v. Fritsch , 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes , 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) ), cert. denied , 531 U.S. 890, 148 L.Ed. 2d 150 (2000).
"In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose , 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied , 515 U.S. 1135, 132 L.Ed. 2d 818 (1995).
N.C. Gen. Stat. § 14-27.4(a)(2), the statute applicable at the time of the offense, provided in relevant part, a person commits First-Degree Sexual Offense by engaging in a sexual act:
N.C. Gen. Stat. § 14-27.4(a)(2) (2015)2 ; State v. Williams , 201 N.C. App. 161, 180, 689 S.E.2d 412, 422 (2009). Here, the case was submitted to the jury solely under subpart (a) and the jury was instructed it could find Defendant guilty of First-Degree Sexual Offense if it found:
[Defendant] employed or displayed an object that [V.B.] reasonably believed was a dangerous or deadly weapon. A dangerous or deadly weapon is a weapon which is likely to cause death or serious bodily injury.
Defendant contends the evidence was insufficient to permit the jury to find either the BB gun or baton to be dangerous or deadly weapons. Focusing his arguments primarily on the BB gun, Defendant points to case law holding a BB rifle was not "a firearm or other dangerous weapon" as a matter of law for purposes of the offense of Robbery with Firearms or Other Dangerous Weapons under N.C. Gen. Stat. § 14-87. See State v. Alston , 305 N.C. 647, 650, 290 S.E.2d 614, 616 (1982). Notably, though, in the same armed robbery context, this Court has declined to hold a BB gun, as a matter of law, can never be a dangerous weapon. State v. Fleming , 148 N.C. App. 16, 24, 557 S.E.2d 560, 565 (2001).
In this case, we need not reach the question of whether the BB gun at issue was, in fact, a deadly or dangerous weapon. This is because First-Degree Sexual Offense requires only that the...
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