State v. Key

• Decision Date: 21 November 2006
• Docket Number: No. COA06-124.,COA06-124.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Stanfield D. KEY, Defendant.

Page 816

636 S.E.2d 816

STATE of North Carolina v. Stanfield D. KEY, Defendant.

No. COA06-124.

Court of Appeals of North Carolina.

November 21, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal by defendant from a judgment entered 1 June 2005 by Judge Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 18 October 2006.

Attorney General Roy Cooper, by Assistant Attorney General, K.D. Sturgis, for the State.

Russell J. Hollers, III, Carrboro, for the defendant.

BRYANT, Judge.

Stanfield D. Key (defendant) appeals from a 1 June 2005 judgment entered consistent with a jury verdict finding him guilty of one count of first degree burglary, two counts of first degree rape, one count of second degree kidnapping and one count of attempted second degree burglary. Defendant was sentenced to a minimum term of 480 months to a maximum of 594 months imprisonment, to run consecutively.

On the evening of 19 September 2000, defendant broke into the Pfeifle home and threatened Mrs. Pfeifle and her two children with a knife in the Pfeifle's bedroom. While in the home, defendant forced Mrs. Pfeifle at knife point to go downstairs into the kitchen where he taped her eyes shut, took the phone off the hook and then told her to go into the family room and remove her clothing. When Mrs. Pfeifle offered defendant her money, defendant stated "[t]hat is not why I am here." Defendant had vaginal intercourse with Mrs. Pfeifle on the leather couch.

In a separate occurrence, on the evening of 15 February 2001, defendant approached the Lesh residence from behind the home, walked to the front door and stood in the doorway for thirty to sixty seconds. Defendant then walked down the driveway away from the Lesh home. Additional facts pertinent to defendant's appeal will be discussed below.

Defendant raises six issues on appeal: whether the trial court erred in (I) denying defendant's motion to dismiss one of two first degree rape charges; (II) denying defendant's motion to dismiss the kidnapping charge; (III) denying defendant's motion to dismiss the attempted second degree burglary charge; (IV) sentencing defendant with a Prior Record Level II; (V) instructing the jury on kidnapping in a manner inconsistent with the indictment; and (VI) sentencing defendant outside the presumptive range.

I

Defendant first argues the trial court erred in denying his motion to dismiss one of two rape charges. Defendant argues there was only one rape of Mrs. Pfeifle because there was not a single act or fact that separated the first penetration from the second. We disagree.

When considering a motion to dismiss, 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). Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion. Id.

Upon a motion to dismiss, the evidence must be considered in the light most favorable to the State, giving it the benefit of every reasonable inference that can be drawn from the evidence. Contradictions and inconsistencies in the evidence are to be resolved in favor of the State. First degree rape is vaginal intercourse with a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim. The force necessary to constitute an element of the crime of rape need not be actual physical force. The use of force may be established by evidence that submission was induced by fear, duress or coercion.... Each act of forcible vaginal intercourse constitutes a separate rape. Generally rape is not a continuous offense, but each act of intercourse constitutes a distinct and separate offense.

State v. Owen, 133 N.C.App. 543, 551-52, 516 S.E.2d 159, 165 (1999) (citations and internal quotation marks omitted).

The State's evidence tended to show that Mrs. Pfeifle and her two children were asleep in the Pfeifle's bedroom when defendant entered the room and threatened to kill them with a knife if they failed to cooperate with defendant. During a struggle between defendant and Mrs. Pfeifle, Mrs. Pfeifle was cut on the nose with the knife. While the children remained in the upstairs bedroom, defendant ordered Mrs. Pfeifle, at knife point, to go downstairs and told her not to "do anything stupid." When they got downstairs, he taped her eyes shut with packing tape he had previously placed on the kitchen table. After her eyes were taped shut, she heard him take the telephone off the hook. Defendant instructed Mrs. Pfeifle to go into the family room, sit down on the couch and take off her pajama bottoms. He said he had a condom, allowed her to feel it on him, and then proceeded to have vaginal intercourse with her as she laid on the couch with her head against the arm rest. Defendant then withdrew his penis from her vagina, turned her on her side, so that she faced the back of the couch and penetrated her from behind. He then stopped suddenly, said he could not continue because Mrs. Pfeifle was "too nice of a person," and allowed her to remove the tape from her eyes.

The evidence shows that, after threatening Mrs. Pfeifle with a knife and blinding her by taping her eyes shut, defendant penetrated Mrs. Pfeifle vaginally from the front, then withdrawing, turning her on her side and re-penetrating her vaginally. Here, there is sufficient evidence to show that defendant committed two separate acts of first degree rape such that defendant's motion to dismiss the second count of first degree rape was properly denied. See State v. Lancaster, 137 N.C.App. 37, 43, 527 S.E.2d 61, 66 (2000) (defendant's motion to dismiss one of the counts of rape was properly denied where the victim testified that she was first penetrated by the defendant from behind and then was penetrated a second time when he forced her onto a shelf in the closet so that she was facing him). This assignment of error is overruled.

II

Defendant next argues the trial court erred in denying his motion to dismiss the second degree kidnapping charge because defendant's conduct was not an act separate from the rape. Specifically, defendant contends he "did not exceed the show or use of force inherent in the crime of rape" and that any restraint or removal of Mrs. Pfeifle was a "mere technical asportation." We disagree.

Kidnapping is the unlawful confinement, restraint, or removal of a person from one place to another for the purpose of: (1) holding that person for a ransom or as a hostage, (2) facilitating the commission of a felony or facilitating flight of any person following the commission of a felony, (3) doing serious bodily harm to or terrorizing the person, or (4) holding that person in involuntary servitude. N.C. Gen.Stat. § 14-39(a) (2005). Second degree kidnapping is shown by some "confinement, restraint or removal of the victim" for one of the unlawful purposes specified in G.S. § 14-39, including the purpose of facilitating the commission of a felony. State v. Fulcher, 294 N.C. 503, 517-18, 243 S.E.2d 338, 348 (1978). "One who ... by the threatened use of a deadly weapon, is restricted in his freedom of motion, is restrained within the meaning of this statute." Id. at 523, 243 S.E.2d at 351. "[A] person cannot be convicted of kidnapping when the only evidence of restraint is that `which is an inherent, inevitable feature' of another felony[.]" State v. Ripley, 360 N.C. 333, 337, 626 S.E.2d 289, 292 (2006) (citation omitted). The court may consider whether the defendant's acts place the victim in greater danger than is inherent in the other offense, or subject the victim to the kind of danger and abuse that the kidnapping statute was designed to prevent. State v. McNeil, 155 N.C.App. 540, 546, 574 S.E.2d 145, 149 (2002), appeal dismissed and disc. rev. denied, 356 N.C. 688, 578 S.E.2d 323 (2003). The court also considers whether defendant's acts "cause additional restraint of the victim or increase the victim's helplessness and vulnerability." State v. Smith, 359 N.C. 199, 213, 607 S.E.2d 607, 618 (2005).

Here, defendant broke into the Pfeifle home at midnight, went upstairs to Mrs. Pfeifle's bedroom, where he threatened the lives of Mrs. Pfeifle and her children at knife point. Defendant then removed Mrs. Pfeifle from her bedroom to the kitchen, again at knife point, forcing her to the kitchen table, where he had previously placed his packing tape and used it to cover Mrs. Pfeifle's eyes. The evidence shows defendant's plan included removing Mrs. Pfeifle to a place in the home where he could further restrain her and rape her while she could not see or identify defendant. See State v. Johnson, 337 N.C. 212, 446 S.E.2d 92 (1994) (kidnapping charges upheld where the victim was exposed to a greater danger than that inherent in the armed robbery itself). Such removal of Mrs. Pfeifle from her bedroom to the kitchen and finally to the family room to be raped on the leather couch was not necessary to accomplish the crime of rape. See Smith, 359 N.C. at 213, 607 S.E.2d at 618 ("separate evidence supported the kidnapping and the robbery [where] defendant took the additional steps of binding the victim's wrists and ankles and taping his mouth [which were] not an inherent, inevitable part of the robbery [but] exposed the victim to a greater danger[.]").

Defendant argues State v. Cartwright, ___ N.C.App. ___, 629 S.E.2d 318 (2006), in which the second degree kidnapping charge was vacated, controls here. However, in Cartwright, the defendant began an armed robbery by demanding money from the victim while she was in the kitchen and again demanded money from her while they were in the den. Id. After the defendant's second demand, the victim walked from the den down the hallway to retrieve the money from her bedroom. Id. Our court in Cartwright held...