State v. Elder

• Docket Number: 276A21
• Decision Date: 16 December 2022
• Citation: 383 N.C. 578,881 S.E.2d 227
• Parties: STATE of North Carolina v. Michael Steven ELDER
• Court: North Carolina Supreme Court

383 N.C. 578
881 S.E.2d 227

STATE of North Carolina
v.
Michael Steven ELDER

No. 276A21

Supreme Court of North Carolina.

Filed December 16, 2022

Joshua H. Stein, Attorney General, by Benjamin O. Zellinger, Special Deputy Attorney General, for the State-appellant.

Law Offices of Bill Ward & Kirby Smith, P.A., by Kirby H. Smith, III, New Bern, for defendant-appellee.

ERVIN, Justice.

383 N.C. 579

¶ 1 The issue before the Court in this case is whether the trial court erred by denying defendant's motion to dismiss the second of two first-degree kidnapping charges which rested upon an allegation that defendant had "unlawfully confin[ed], restrain[ed,] and remov[ed] [the victim] from one place to another without her consent" for the purpose of facilitating the commission of a first-degree rape even though the record evidence tended to show that one of the alleged kidnappings had occurred after the commission of the rape had concluded. A majority of the Court of Appeals held, in reliance upon State v. Morris , 147 N.C. App. 247, 555 S.E.2d 353 (2001), aff'd per curiam , 355 N.C. 488, 562 S.E.2d 421 (2002), that the second of defendant's first-degree kidnapping convictions lacked sufficient record support. State v. Elder , 278 N.C. App. 493, 2021-NCCOA-350, ¶¶ 35–37, 863 S.E.2d 256. The dissenting judge, on the other hand, concluded that the second of defendant's first-degree kidnapping convictions should be upheld on the basis of State v. Hall , 305 N.C. 77, 286 S.E.2d 552 (1982), overruled on other grounds by State v. Diaz , 317 N.C. 545, 346 S.E.2d 488 (1986). Elder , ¶¶ 90–94 (Tyson, J., concurring, in part, and dissenting, in part). After careful consideration of the parties’ arguments in light of the record and the applicable law, we conclude that the Court of Appeals’ decision should be affirmed and remand this case to the Court of Appeals for further remand to Superior Court, Warren County, for further proceedings not inconsistent with this opinion.

I. Factual Background

A. Substantive Facts

¶ 2 On 7 July 2007, A.H.,¹ who was 80 years old and lived alone, was tending to the flower garden in front of her residence when she noticed a light-colored automobile driving slowly past her house. Upon hearing the car turn and begin moving back in her direction,

881 S.E.2d 230

the victim entered her residence and locked the storm door behind her. After the vehicle parked in the driveway, a man carrying a black satchel approached the victim's house and knocked on the door. Although the victim opened the main door to speak with the man, she left the storm door locked. The man offered to demonstrate a rug cleaning product that he claimed to want to sell to her, but the victim informed the man that she was not interested in his proposal. As a result, the man wrote his contact information on a piece of paper, which he presented to the victim for the purpose of making sure that she would be able to get in touch with him if she changed her mind.

383 N.C. 580

¶ 3 When the victim unlocked and opened the screen door in order to retrieve the paper, the man grabbed the victim's wrist, pushed the door open, and entered the house, at which point he demanded to know where the victim kept her money. After the victim told the man that she did not have any money, the man forced the victim into her bedroom, pushed her onto the bed, and began removing her clothes. Although the victim begged the man not to harm her, he forcibly engaged in vaginal intercourse with her before putting his penis into her mouth and attempting to make her perform oral sex upon him.

¶ 4 After sexually assaulting the victim, the man began rifling through the drawers in the victim's dresser while demanding to know "where [the victim] kept her good stuff." At the conclusion of his search for items of value, the man took approximately $450 in cash from one of the victim's pocketbooks along with the victim's food stamps, Medicaid card, and driver's license. Although the victim informed the man that her daughter was on the way, the man replied that he would kill the victim if her daughter arrived before his departure.

¶ 5 After tying the victim up and placing her in her bedroom closet, the victim told the man that she could not breathe. At that point, the man moved the victim to the closet in a smaller, adjacent bedroom and tied her to a chair,² told the victim that he was going to take a shower, and warned the victim not to leave the room while he was there. Following the man's departure, the victim could hear water running in the bathroom.

¶ 6 After some period of time had passed, the victim was able to untie herself. Although the victim could still hear the sound of running water, she made her way to the front window of the house, from which she could see that the intruder's automobile had departed. At that point, the victim entered the bathroom and discovered that it was empty despite the fact that the water was continuing to run in the shower.

¶ 7 Upon attempting to telephone her daughter, Linda Carter, the victim reached Ms. Carter's husband, Harry Carter, whom she told that she had been raped and robbed and from whom she pleaded for assistance.

383 N.C. 581

When the Carters arrived at the victim's residence a few minutes later, they discovered that the storm door had been partially torn away from the door jam. According to Mr. Carter, the victim was "a nervous wreck," "very upset," and "hysterical," prompting Ms. Carter to call for emergency assistance.

¶ 8 After emergency medical services personnel and officers from the Warren County Sheriff's Office arrived at the victim's residence, the victim was transported to Maria Parham Hospital in Louisburg. Due to the fact that Maria Parham did not have a rape kit and was not staffed by personnel trained to administer one, the victim was transferred to WakeMed Hospital, where she was seen by Sexual Assault Nurse Examiner Cindy Carter. Nurse Carter performed a rape kit examination and delivered the completed rape kit and other items of evidence that had been collected from the victim to Detective

881 S.E.2d 231

Sergeant Ben Jackson of the Warren County Sheriff's Office, with the evidence in question having later been submitted to the State Crime Laboratory for processing. In addition, Sergeant Jackson interviewed the victim before she was transferred to WakeMed, at which point she described the assault that had been committed against her.

¶ 9 Special Agent Russell Holley of the Forensic Serology Unit of the State Crime Laboratory examined samples that had been derived from the rape kit and detected the presence of sperm cells in smears that had been collected from the victim and on a cutting that had been taken from the underwear that the victim had been wearing at the time of the assault. In addition, Forensic Scientist Supervisor Timothy Baize of the State Crime Laboratory detected a DNA mixture on the victim's underwear that was consistent with that of the victim and an unknown male contributor.

¶ 10 At the time of the victim's death on 18 December 2015, the perpetrator of the assault that had been committed against her had not been identified. On 12 April 2016, Sergeant Jackson contacted the Forensic Investigations Division of the New York City Police Department at the suggestion of the State Crime Laboratory. After making contact with the New York City Police Department, Sergeant Jackson sought and obtained a bill of indictment from the Warren County grand jury against Stephen Davis charging him with having assaulted the victim, only to learn later that Mr. Davis had been incarcerated on the date of the assault.³ After further communications with the New York City Police Department, Sergeant Jackson obtained a search warrant authorizing

383 N.C. 582

the seizure of a DNA sample from defendant. On 18 July 2016, Sergeant Jackson traveled to Winston-Salem, where defendant was living at the time and, along with officers from the Forsyth County Sheriff's Office, executed the search warrant and obtained a DNA sample from defendant. Sergeant Jackson also interviewed defendant, who told Sergeant Jackson that he had not assaulted the victim, that he was not familiar with Warren County, and that he was willing to submit to a polygraph examination in order to prove his innocence.

¶ 11 On 19 July 2016, Sergeant Jackson submitted the DNA sample that had been obtained from defendant to the State Crime Laboratory for comparison with the DNA samples that had been obtained from the rape kit that had been administered to the victim. According to Mr. Baize, "the DNA profile obtained from the sperm fraction of the cutting from the [victim's underwear]" was "consistent with the DNA profile obtained from [defendant]," with the probability that the DNA profile of an unrelated and randomly selected individual would be consistent with the DNA profile that had been obtained from the sperm fraction that had been found on the victim's underwear being "approximately 1 in 10.7 trillion in the Caucasian population,...