State v. Sakobie

• Decision Date: 15 April 2003
• Docket Number: No. COA02-677.,COA02-677.
• Citation: 157 NC App. 275,579 S.E.2d 125
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina, v. Tanna Barnard SAKOBIE.

579 S.E.2d 125

157 NC App. 275

STATE of North Carolina, v. Tanna Barnard SAKOBIE.

No. COA02-677.

Court of Appeals of North Carolina.

April 15, 2003.

Attorney General Roy Cooper, by Assistant Attorney General Sueanna P. Sumpter, for the State.

Leslie C. Rawls, Charlotte, for defendant-appellant. McGEE, Judge.

Tanna Barnard Sakobie (defendant) was convicted of first degree kidnapping, larceny of a motor vehicle, and possession of a stolen automobile. The trial court determined that defendant had a prior record level of III. The trial court arrested judgment as to the charge of possession of a stolen vehicle. The trial court sentenced defendant to a minimum of 95 months to a maximum of 125 months active imprisonment for first degree kidnapping. The trial court sentenced defendant to a minimum of 10 months and to a maximum of 12 months suspended with 24 months of supervised probation for the larceny of a motor vehicle, to run consecutively from the first degree kidnapping sentence. Defendant appeals.

The evidence presented by the State at trial tended to show that on the evening of 4 October 2000, Joi Rivers (Rivers) drove to the Quick Stop convenience store in Hope Mills, North Carolina in her Chevrolet Cavalier to purchase soft drinks. Rivers' five-year-old son (the child) was with Rivers in the vehicle. When Rivers pulled up to the Quick Stop, she left the child in the front seat of the vehicle with the engine running. While Rivers was inside the Quick Stop, a woman, later identified as defendant, got into River's vehicle and drove away with the child still in the vehicle. When Rivers reached the counter to pay for her purchases, she did not see her vehicle outside. Rivers ran outside into the parking lot, saw that her vehicle and the child were gone, and began to scream and cry. Rivers went back into the Quick Stop and the store clerk called the police.

As defendant pulled out of the Quick Stop parking lot she almost caused a collision. Defendant drove approximately six and a half miles to a second convenience store, the Pit Stop, in Hope Mills, arriving around 10:30 p.m. Defendant got out of the vehicle, pulled the child out of the vehicle, and took him into the Pit Stop with her. Defendant told the child to stand at the counter and not say a word. The child remained at the counter, crying, while defendant purchased a forty-ounce bottle of beer. Defendant then grabbed the child by the arm and pulled him back out of the Pit Stop.

Defendant drove the child to a trailer, where she left him in the vehicle while she got a bag from the occupants of the trailer. Defendant then drove 12.7 miles into the countryside to the home of defendant's acquaintance, Robert Johnson (Johnson). Johnson's son, Robert "Shakeel" Johnson, and Johnson's cousin, Sarah Pennick, were also living at the home. Several other people were also on the premises when defendant arrived. Defendant had a conversation with some of these people and a man struck her. The child was crying and told Johnson that he wanted to go back to the store where his mother was. However, defendant went inside the house to drink wine, leaving the child outside in the car for at least five to ten minutes. When defendant came out of the house, Johnson said he would accompany defendant to return the child to the child's mother. However, defendant did not accept Johnson's offer and drove away with the child.

Around midnight, defendant drove approximately 3.7 miles to a trailer where Vicky Ray (Vicky) and Jerome Leak (Jerome) lived. The trailer was in a rural area, with only one other trailer behind it, and a house across the road. The trailer was approximately 12.6 miles from the Quick Stop. There were lights on in the trailer. Defendant stopped about twenty feet from the backdoor of the trailer and told the child his mother was inside. The child responded that his mother did not go to trailers; however, defendant pushed him out of the car. The child heard a dog barking and went to the back door of the trailer and knocked. Defendant drove away while the child was knocking at the door.

Vicky answered the door and found the child standing there. Vicky saw a car turning onto the main road. The child kept saying that he wanted his mother, so Vicky told him to come in because it was cold. Vicky did not own a telephone or a car and there was no telephone within miles of the trailer. Vicky put the child to bed on a couch and told him that she would try and find a way to return him to his mother in the morning. Defendant, after leaving the child at Vicky and Jerome's trailer, returned to Johnson's residence to have a few more drinks. Defendant later left with Larry Johnson, Robert Johnson's brother.

At approximately 2:45 a.m., Officer Garrett Gwin of the Hope Mills Police Department saw defendant driving Rivers' vehicle and stopped defendant. Defendant was placed in police custody. Officer Gwin determined the child was not in the vehicle, and an extensive search for the child began, involving several officers and a helicopter. Defendant initially led the officers to many irrelevant locations in the search for the child. However, after about an hour, an officer became angry and told defendant he was going to take her to jail, to which defendant responded by leading the officers to Vicky and Jerome's trailer. The officers located the child in the trailer and returned him to Rivers.

Defendant's witness, Dewey Jackson (Jackson), testified that he and defendant lived together between 1996 and June of 2000. Jackson testified that he was acquainted with Vicky and Jerome. He testified that his car was stolen in February of 2000, and that James Baldwin (Baldwin) and Vicky's niece were involved. Baldwin and Vicky's niece had previously lived with Vicky and Jerome and had left their baby with Vicky and Jerome. Jackson testified that Vicky had taken him to various locations in search of her niece and Baldwin. He also testified that he and defendant had occasionally taken Vicky to pay her rent and to get groceries, and that they once drank beer in Vicky's trailer. However, Vicky testified at trial that she was not acquainted with defendant. Jerome also testified that he did not recognize defendant. Further facts will be set out below as necessary.

Defendant failed to put forth an argument in support of assignments of error 1, 2, 3, 4, 6, and 7. These assignments of error are therefore deemed abandoned. N.C.R.App. P. 28(b)(6).

I.

Defendant assigns as plain error the trial court's allowing the State to argue that, for the purposes of first degree kidnapping, the only safe place to leave a child is with his parent or with someone who has a duty of care, and by failing to take adequate steps to correct the misstatement. We note that where a defendant has failed to object at trial to a prosecutor's closing argument but attempts to challenge the argument on appeal, the standard of review is gross impropriety, rather than plain error. State v. Thomas, 350 N.C. 315, 360-61, 514 S.E.2d 486, 514, cert. denied, 528 U.S. 1006, 120 S.Ct. 503, 145 L.Ed.2d 388 (1999). We are therefore required to determine whether the prosecutor's jury argument was so grossly improper as to warrant the trial court's intervention ex mero motu. State v. Cummings, 352 N.C. 600, 621, 536 S.E.2d 36, 52 (2000), cert. denied, 532 U.S. 997, 121 S.Ct. 1660, 149 L.Ed.2d 641 (2001). Our Supreme Court recently summarized:

"Under this standard, `[o]nly an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.' State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693, cert. denied, 519 U.S. 890 136 L.Ed.2d 160 (1996). `[D]efendant must show that the prosecutor's comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair.'" State v. Davis, 349 N.C. [1,] 23, 506 S.E.2d [455,] 467 [ (1998), cert. denied, 526 U.S. 1161 144 L.Ed.2d 219 (1999) ].

State v. Nicholson, 355 N.C. 1, 41-42, 558 S.E.2d 109, 137, cert. denied, ___ U.S. ___, 123 S.Ct. 178, 154 L.Ed.2d 71 (2002) (quoting State v. Anthony, 354 N.C. 372, 427-28, 555 S.E.2d 557, 592 (2001), cert. denied, 536 U.S. 930, 122 S.Ct. 2605, 153 L.Ed.2d 791 (2002)).

Defendant challenges the prosecutor's statement to the jury that defendant refused to take the child to his mother, "the only place, the [S]tate submits, that that child was safe or to someone that had a duty of care." If such a statement stood in isolation as the only explanation of the element of failure to release a victim in a safe place, such a statement could arguably be classified as "an extreme impropriety on the part of the prosecutor." However, the prosecutor's statement quoted above was just a small part of the argument she made concerning the element of failure to release the victim in a safe place, the rest of which defendant does not challenge.

The prosecutor several times foreshadowed how the judge would instruct the jury in relation to that portion of the charge; however, the prosecutor did not do so as to the statement defendant now challenges. In fact, the State emphasized that the challenged statement was the State's opinion of what would have been a safe place in the present case by using the language, "the [S]tate submits."

The General Assembly has not provided a definition or guidance to the courts in defining the term, "safe place." See N.C. Gen. Stat. § 14-39 (2001). Nor do our pattern jury instructions include such a definition. See N.C. Pattern Jury Instructions for Criminal Cases § 210.20. Further, the cases that have focused on whether or not the release of a victim was in a safe place have been decided by our Courts on a case-by-case approach, relying on the particular facts of each case. See State v. Heatwole, 333 N.C....