State v. Ripley

• Decision Date: 16 August 2005
• Docket Number: No. COA04-924.,COA04-924.
• Citation: 617 S.E.2d 106
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Antonio Lamarquisa RIPLEY.

Page 106

617 S.E.2d 106

STATE of North Carolina v. Antonio Lamarquisa RIPLEY.

No. COA04-924.

Court of Appeals of North Carolina.

August 16, 2005.

Appeal by defendant from judgment entered 19 March 2004 by Judge Jack. W. Jenkins in Onslow County Superior Court. Heard in the Court of Appeals 12 April 2005.

Attorney General Roy Cooper, by Assistant Attorney General M. Elizabeth Guzman, for the State.

Thomas R. Sallenger, Wilson, for defendant-appellant.

ELMORE, Judge.

Antonio Lamarquisa Ripley (defendant) was convicted of fifteen counts of second degree kidnapping, seven counts of robbery with a firearm, and three counts of attempted robbery with a firearm. Defendant appeals nine of his convictions for second degree kidnapping. For the reasons that follow, we vacate these convictions.

I.

At trial, the State presented evidence tending to show that, on 30 May 2003, the then thirty-two-year-old defendant gathered together four young men, who were then all under the age of eighteen, and drove them from Wilmington to Jacksonville, North Carolina in his SUV. Upon arriving at the Hampton Inn in Jacksonville sometime after 9:00 p.m., three of the four departed the SUV and targeted a hotel guest, Mr. Donald Annoni (Mr. Annoni). Mr. Annoni and his son Stephen were returning to their car to retrieve some pillows when Mr. Annoni noticed someone on the ground under an adjacent car. Two black males wearing masks and brandishing handguns then approached and instructed him to proceed to his car with his hands up. Mr. Annoni and Stephen were ordered at gunpoint to climb into the trunk of the vehicle. After roughly ten to fifteen minutes during which they could hear the car being searched, the Annonis were freed when the perpetrators opened the trunk by remote and threw the keys back to Mr. Annoni.

According to the evidence presented at trial, the criminal spree of defendant and his associates continued into the lobby of the Hampton Inn, where Ms. Tamara Basden (Ms. Basden) and Mr. Sean Barnett (Mr. Barnett) were managing the front desk. Upon entering the lobby, three armed men ordered everyone to the floor. The lobby contained three patrons, including Ms. Lacee Zornes, who would testify at trial for the State. One robber pointed a gun at Mr. Barnett's head as the cash drawer was emptied of its contents, approximately $260.00. Mr. Barnett was then removed to the manager's office to join Ms. Basden, who had previously been led to the office, and both were questioned as to the whereabouts of surveillance cameras and keys to the hotel safe. The robbers took a cell phone off of Mr. Barnett and departed without gaining access to either the safe or any surveillance devices.

The State's evidence at trial further showed that defendant then drove his criminal contingent to the Extended Stay America Motel, also in Jacksonville. As had occurred at the Hampton Inn, three masked and armed men entered the lobby and approached the front desk. Laketria Sharpless (Ms. Sharpless), the front desk clerk, immediately supplied the money demanded from the cash drawer, which totaled roughly $300.00. After she heard the robbers ask about a tape, Ms. Sharpless led one of the robbers to the break room where she ejected from a VCR what she believed to be the surveillance tape.¹ Ordered to stay on the floor in the break room, Ms. Sharpless was initially able to observe the men searching the lobby via a closed-circuit television. The men then ordered Ms. Sharpless to return to the front desk and "act normal." Ms. Sharpless later reported the loss of $60.00 from her own purse.

The robbers hid as the Rodriguez family entered the lobby with friends Alvaro Perez (Mr. Perez) and Peter Lucas (Mr. Lucas). Ms. Sharpless engaged in small talk with the Rodriguez family while she attempted to find a way to flee, but, when she left the front desk, the men leapt out and demanded money of all persons present. The men obtained $250.00 from Mr. Ricardo Rodriguez, Sr. (Mr. Rodriguez), $250.00 from Mr. Perez, and $200.00 from Mr. Lucas. The two young Rodriguez children, as well as Ms. Rodriguez, were ordered at gunpoint to get onto and remain on the floor.

Another group of hotel guests with friends would then enter the scene from the parking lot. As Tracy and Dennis Long (Mr. and Ms. Long) approached the lobby door with their friends, Skylar and Adrian Panter (Mr. and Ms. Panter), they observed the robbery in progress and attempted to turn and walk away. But, when one of the armed robbers saw the group, he forced them to enter the lobby where they were told to empty their wallets and purses. These efforts, however, yielded $8.00 from Ms. Long.

Police began arriving as the three perpetrators returned to defendant's SUV in which he and the fourth youth, fifteen-year-old Jonathan Battle (Mr. Battle), had been waiting. They deposited the money and guns in the car. Given the number of police officers in the area, defendant told the three young robbers to get out of the vehicle and that he would pick them up later. The three then ran into a field where they were apprehended by the police. Defendant and Mr. Battle abandoned efforts to retrieve their colleagues when it became apparent that the authorities had captured them. The pair stopped for food at a Burger King and tossed away some items from the night's crimes. The police pulled over the SUV and arrested defendant and Mr. Battle just outside of Wilmington.

Mr. Battle and another accomplice, Jamar D. McCarthur, testified as to how defendant instructed them on conducting a robbery at the hotels. At the close of the State's evidence, defendant moved to dismiss the second degree kidnapping convictions and argued that in each case any movement of the victim was not an offense separate and independent from the robbery of these victims. The court denied defendant's motion to dismiss the kidnapping charges. Defendant chose to present no evidence at trial. Upon defendant's conviction of the aforementioned crimes, the trial court sentenced defendant to four consecutive terms of imprisonment of 117 to 150 months. Defendant appeals.

II.

On appeal, defendant contends that the trial court erroneously denied his motions to dismiss charges of second degree kidnapping with respect to certain victims. Defendant argues that being convicted of both the robbery offense and the kidnapping offense with respect to these victims violates his constitutional protection against double jeopardy.

N.C. Gen. Stat. § 14-39 establishes the offense of kidnapping in pertinent part as follows:

Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over . . . shall be guilty of kidnapping if such confinement, restraint, or removal is for the purpose of . . .

(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; or

(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person N.C. Gen.Stat. § 14-39(a) (2003). In State v. Fulcher, our Supreme Court recognized it as "self-evident that certain felonies (e.g., forcible rape and armed robbery) cannot be committed without some restraint of the victim." 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). Thus, the Court in Fulcher "construe[d] the word `restrain,' as used in G.S. 14-39, to connote a restraint separate and apart from that which is inherent in the commission of the other felony." Id.; see also State v. Irwin, 304 N.C. 93, 102-03, 282 S.E.2d 439, 446 (1981). In Irwin, a store employee was ordered at knifepoint to proceed from the cash register to the back of the store so that the defendant and his accomplice could gain access to the drug prescription counter and the store's safe. 304 N.C. at 103, 282 S.E.2d at 446. Our Supreme Court found that this movement was "a mere technical asportation," which did not support an independent charge of kidnapping consistent with the defendant's protection against double jeopardy. Id.

In determining whether a movement or restraint during an armed robbery can support an independent charge of kidnapping, we ask whether the defendant's actions exposed the victim to a "greater danger than that inherent in the armed robbery itself" and to "the kind of danger and abuse the kidnapping statute was designed to prevent." Irwin, 304 N.C. at 103, 282 S.E.2d at 446. Thus, as recognized by this Court in State v. Muhammad, 146 N.C.App. 292, 295, 552 S.E.2d 236, 237 (2001), "the key question [in a double jeopardy analysis] is whether the kidnapping charge is supported by evidence from which a jury could reasonably find that the necessary restraint for kidnapping exposed the victim to greater danger than that inherent in the underlying felony itself." Id. at 295, 552 S.E.2d at 237.

III.

Defendant first argues that being convicted of both second degree kidnapping and robbery with a firearm with respect to Mr. Rodriguez violates his constitutional protection from double jeopardy. We agree.

Mr. Rodriguez testified that he entered the lobby with his family and friends and that the men then jumped out from behind the counter. He stated that he thought the robbery was a joke at first, but that one of the robbers unchambered a gun to show it was loaded. Mr. Rodriguez testified that after seeing that the gun was loaded, he backed away from the counter and got down onto the floor. He further testified that after he gave the robbers the money from his wallet, another group of guests entered the lobby and were immediately robbed.

The State contends that restraint of Mr. Rodriguez went beyond that necessary to complete a robbery because he was restrained after his own robbery and was forced to wait as the other patrons were also robbed. However, the State's position deviates from established case law, in particular our Supreme Court's decision in State v. Beatty, 347 N.C. 555, 495 S.E.2d...