State v. Morgan
| Decision Date | 15 May 2007 |
| Docket Number | No. COA06-1234.,COA06-1234. |
| Citation | 645 S.E.2d 93 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Raeford Lee MORGAN. State of North Carolina v. Daquann Curtis Brunson. |
Raeford Lee Morgan ("defendant Morgan") and Daquann Curtis Brunson ("defendant Brunson") (collectively, "defendants") appeal from judgments entered after a jury found them to be guilty of two counts of first-degree kidnapping and two counts of robbery with a dangerous weapon. We find no error at trial, but remand for clarification of defendant Brunson's sentencing.
James Brannon ("Mr. Brannon") and Patsy Brannon ("Mrs. Brannon") (collectively, "the victims") were staying at the Extended Stay Hotel in Raleigh, North Carolina on 25 November 2003. Sometime after 8:00 p.m., the victims ordered food from a Steak-Out Restaurant. An employee of Steak-Out delivered the food to their hotel room about forty-five minutes later. The Steak-Out employee failed to deliver two beverages the victims had ordered and reimbursed Mrs. Brannon $2.50 for the missing beverages. Mrs. Brannon placed the money on a counter in the hotel room.
A few minutes later, Mrs. Brannon heard a knock on her hotel room door. She thought the Steak-Out employee had returned to deliver the missing beverages. Mrs. Brannon answered the door. A man pushed the door open and entered the victims' hotel room along with two other men. Mrs. Brannon testified the three men wore scarves or ski masks that covered their faces. As the men entered the room, Mrs. Brannon heard a noise she testified sounded like a cap gun firing. One man pushed Mrs. Brannon against the wall, slammed her onto the floor, and restrained her with duct tape. Another man pushed Mr. Brannon onto the floor and restrained him with duct tape. Mr. Brannon testified that one of the men had a gun, which looked like a black revolver, and he poked Mr. Brannon in the head with the gun several times.
The three men ransacked the victims' hotel room. The men could not find any money and left the hotel room with $2.50 and the victims' cellular telephones. Mrs. Brannon cut the duct tape off of her and Mr. Brannon's hands and called 9-1-1.
On 27 September 2004, a grand jury indicted defendants on two counts of first-degree kidnapping and two counts of robbery with a dangerous weapon. Defendants' case proceeded to trial. One of the three men, James Mitchell ("Mitchell") confessed to the crimes and testified for the State at trial. Mitchell testified he, defendant Morgan, and defendant Brunson conducted the robbery and kidnapping of the victims at the Extended Stay Hotel.
On 10 February 2006, a jury found defendants to be guilty of all charges. The trial court sentenced defendant Morgan as a Level IV offender to two consecutive sentences of 133 months minimum to 169 months maximum imprisonment and two consecutive sentences of 117 months minimum to 150 months maximum imprisonment. Defendant Brunson was sentenced as a Level II offender to two consecutive sentences of 100 months minimum to 129 months maximum imprisonment and two consecutive sentences of seventy-seven months minimum to 102 months maximum imprisonment. Defendants appeal.
Defendant Morgan argues the trial court erred when it: (1) denied his motion to dismiss his robbery with a dangerous weapon charge; (2) denied his motion to dismiss his first-degree kidnapping charge; (3) admitted evidence of his prior conviction for robbery; (4) denied his request for a jury instruction on common law robbery; (5) denied his request for a jury instruction on second degree kidnapping; (6) instructed the jury on the meaning of "release;" and (7) sentenced him separately for robbery committed against the victims where the State's evidence indicated that the property taken was marital property.
Defendant Brunson argues the trial court: (1) committed plain error in failing to instruct the jury on the lesser included offense of common law robbery and (2) erred when it failed to dismiss ex meru motu on the armed robbery charges. Defendant Brunson also argues the robbery with a dangerous weapon charge must be remanded because the judgment and commitment entered is inconsistent with the trial court's oral rendition of the judgment.
The standard for ruling on a motion to dismiss is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense. Substantial evidence is relevant evidence which a reasonable mind might accept as adequate to support a conclusion. In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.
State v. Wood, 174 N.C.App. 790, 795, 622 S.E.2d 120, 123 (2005) (internal quotations omitted). This Court stated in State v. Hamilton, "in `borderline' or close cases, our courts have consistently expressed a preference for submitting issues to the jury, both in reliance on the common sense and fairness of the twelve and to avoid unnecessary appeals." 77 N.C.App. 506, 512, 335 S.E.2d 506, 510 (1985) (citations omitted), disc. rev. denied, 315 N.C. 593, 341 S.E.2d 33 (1986).
Defendant Morgan argues the trial court erred when it denied his motion to dismiss the robbery with a dangerous weapon charges. We disagree.
N.C. Gen.Stat. § 14-87(a) (2005) states:
(a) Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a Class D felony.
The elements of robbery with a dangerous weapon are the unlawful taking or attempt to take personal property from the person or in the presence of another by the use or threatened use of a firearm or other dangerous weapon, whereby the life of a person is endangered or threatened where the taker knows he is not entitled to take the property and intends to permanently deprive the owner of the property. State v. Richardson, 342 N.C. 772, 784, 467 S.E.2d 685, 692, cert. denied, 519 U.S. 890, 117 S.Ct. 229, 136 L.Ed.2d 160 (1996). A dangerous weapon is a deadly weapon, and a pistol is a deadly weapon. State v. Torain, 316 N.C. 111, 120, 340 S.E.2d 465, 471 (1986).
Mitchell testified the gun used in the robbery was "a .22 long," which belonged to defendant Brunson. Defendant Brunson had been carrying the gun while the men were inside the car. Mitchell possessed the gun after the men entered the hotel elevator. Defendant Brunson retrieved the gun before the three men entered the victims' hotel room. Mrs. Brannon testified that when the three men forced their way into her hotel room, the first of the three men brandished a gun that was "big and black." She believed it was a real gun. Mr. Brannon testified that the firearm appeared to be a black revolver and that one of the robbers poked him in the head several times with the gun.
Testimony was presented that the gun was fired as the robbers pushed their way into the room. Mr. Brannon, who was familiar with firearms, testified that the gun "sounded like a .22." Mrs. Brannon heard a "pop," which did not sound like a typical gunshot, but stated she was not familiar with the sound a gun makes when it fires. Sergeant George Smith ("Sergeant Smith") testified that it was possible that when the gun fired the shell was a "squib load" because no bullets were found in the hotel room. A "squib load" occurs when the hammer of the gun strikes the bullet, but the primer does not detonate the powder, and the bullet does not gather sufficient velocity to clear the barrel of the gun. Sergeant Smith testified that a "pop" is generally heard when a "squib load" occurs. Mitchell testified that he heard the gun go off as the men forced their way into the hotel room. He testified that the back of the gun fell off after defendant Brunson fired it, and defendant Brunson picked up the dislodged piece and reattached it to the gun.
Substantial evidence was presented from which the jury could find that defendant Morgan committed the offense of robbery with a dangerous weapon. The trial court properly denied his motion to dismiss the charges. This assignment of error is overruled.
Defendant Morgan argues the trial court erred when it denied his motion to dismiss the first-degree kidnapping charges. We disagree.
The offense of kidnapping is established upon proof of an unlawful, nonconsensual restraint, confinement, or removal of a person from one place to another, for the purpose of: (1) holding the person for ransom, as a hostage or using them as a shield; (2) facilitating flight from or the commission of any felony; or (3) terrorizing or doing serious bodily harm to the person. State v. Smith, 160 N.C.App. 107, 119, 584 S.E.2d 830, 838 (2003) (emphasis supplied). The offense is first-degree kidnapping where the...
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