State v. Shaw

• Citation: 106 N.C.App. 433,417 S.E.2d 262
• Decision Date: 16 June 1992
• Docket Number: No. 9114SC661,9114SC661
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina v. Amos Andrew SHAW.

Page 262

417 S.E.2d 262

106 N.C.App. 433

STATE of North Carolina v. Amos Andrew SHAW.

No. 9114SC661.

Court of Appeals of North Carolina.

June 16, 1992.

Lacy H. Thornburg, Atty. Gen. by Robin Michael, Associate Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender, by Daniel R. Pollitt, Asst. Appellate Defender, Raleigh, for defendant-appellant.

GREENE, Judge.

Defendant appeals from judgments entered 7 February 1990, which judgments are based on jury verdicts convicting defendant of one count of first degree burglary, N.C.G.S. § 14-51 (1986), and one count of second degree kidnapping, N.C.G.S. § 14-39 (1986 and Supp.1991). The trial court sentenced defendant to a term of natural life for the burglary conviction and a term of twenty years, to begin at the expiration of the life sentence, for the kidnapping conviction.

The evidence in this case is conflicting. The State's evidence established that Sally Gibson (Gibson) is a ninety-four years old woman who lives alone in a house in Durham. She rarely has visitors other than members of her family. At approximately 11:00 p.m. on 11 November 1989, Gibson was at home alone watching television when defendant entered her residence through a window. Gibson testified that, prior to defendant's entry, the window had been closed. When defendant entered, Gibson picked up a gun that she owned and kept in her house. Defendant knocked her onto the floor on her face and straddled her. Gibson screamed, and defendant told her to "hush before I choke you," and demanded that she "turn loose [of the gun] before I shoot you." Defendant twisted the gun out of Gibson's hand and then asked Gibson where "the money" was. At this time, Durham Police Officer R.M. Davis (Officer Davis) knocked on the door. Defendant got off of Gibson and placed the gun on top of the television. He told Gibson, "I am going to tell them you are my grandmother," and for her to say the same.

Defendant answered the door and began talking with Officer Davis. He told Officer Davis that Gibson was his grandmother. Gibson testified that she went to the door and wanted to talk to Officer Davis, but was scared. Gibson saw her next-door neighbor step outside, and ran to her neighbor's house. Both defendant and Officer Davis followed Gibson. Gibson was "hysterical" and told Officer Davis that she did not know defendant, that defendant had come in her window, and that defendant told her that if she did not say that everything was okay, he would kill her. Officer Davis arrested defendant. Thereafter, defendant was indicted on charges of first degree burglary, second degree kidnapping, and assault with a deadly weapon.

Defendant's evidence established that defendant is a house painter in Durham who does much of his work on credit for senior citizens. Defendant met Gibson for the first time in April, 1989, and spoke with her again in July, 1989. On the evening of 11 November 1989, defendant left a lounge which is located in Gibson's neighborhood and decided to call on Gibson to see if she needed any work done around the house. Defendant had a friend drop him off at Gibson's house at approximately 8:00 p.m. Gibson invited defendant inside. Gibson and defendant had been talking for approximately two hours when Gibson said that she heard something outside and started getting upset. Defendant went outside to check, but did not see anything unusual. When defendant came back inside Gibson's house, Gibson was pointing a pistol at him. Defendant grabbed the pistol out of Gibson's hand and Gibson and defendant both accidentally fell down. Gibson "hollered" for a few minutes, and defendant took the gun and put it on top of the television.

At this time, Officer Davis knocked on Gibson's door. Defendant answered the door, produced identification, and told Officer Davis that he was visiting "Ma Gib." As Officer Davis began to leave Gibson's residence, Gibson suddenly ran toward a neighbor's house screaming. Defendant testified that Gibson was probably tired, confused, and upset about the noise that she had heard earlier and her fall. He testified that he did not intend to steal anything from Gibson, that he did not break into Gibson's house, and that he did not restrain or coerce Gibson inside her home.

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The issues are whether I) on the charge of second degree kidnapping, the State presented substantial evidence that defendant restrained Gibson for the purpose of facilitating flight after commission of a felony; II) on the charge of first degree burglary, the State presented substantial evidence of the breaking element; III) defendant's denial at trial that he committed first degree burglary made it unnecessary for the trial court to instruct the jury on the lesser included offense of misdemeanor breaking and entering; IV) Officer Davis' testimony that "it appeared that there had indeed been a break in" at Gibson's residence constitutes inadmissible opinion evidence, and, if so, whether there is a reasonable possibility that the jury would have reached a different verdict had this evidence been excluded; and V) the trial court erroneously found and relied on as a non-statutory aggravating sentencing factor that "the lady, like any other citizen, is entitled to peace of mind and body in her home."

I

Defendant's indictment for second degree kidnapping charged defendant, pursuant to N.C.G.S. § 14-39, with unlawfully confining and restraining Gibson without her consent for the purpose of (1) using her as a shield; (2) facilitating the commission of the felony of first degree burglary; (3) facilitating flight following defendant's participation in the commission of the felony of first degree burglary; and (4) terrorizing her. The trial court, without objection, submitted the kidnapping charge to the jury on the theory that defendant's purpose for unlawfully restraining Gibson was to facilitate flight after having committed first degree burglary.

Defendant argues that the State failed to present substantial evidence at trial that he unlawfully restrained Gibson for the purpose of facilitating flight after commission of a felony. According to defendant, his physical restraint of Gibson, if any, was for the purpose of robbing her and not for the purpose of facilitating flight. Therefore, defendant argues, the trial court erroneously denied defendant's motion to dismiss the charge of second degree kidnapping at the close of all the evidence. The State argues that defendant restrained Gibson in her home by threatening her with bodily harm if she refused to tell Officer Davis that she was defendant's grandmother. Defendant's purpose for using such restraint, according to the State, was to facilitate his escape from Gibson's residence after committing first degree burglary.

In order to survive a defendant's motion to dismiss in a prosecution for kidnapping, the State must present substantial evidence that the defendant unlawfully restrained or confined the victim without the victim's consent for one or more of the purposes delineated in Section 14-39. State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980). The restraint contemplated by Section 14-39 need not be physical; a person who is restricted from freedom of movement by the threatened use of a deadly weapon is "restrained" within the meaning of the statute. Fulcher, 294 N.C. at 523, 243 S.E.2d at 351.

The State presented evidence at trial that, when Officer Davis knocked on Gibson's front door, defendant, while holding Gibson's gun, told Gibson to say that everything was okay and that defendant was Gibson's grandson, and that if she did not do as defendant instructed, he would kill her. Gibson testified that, when defendant opened the door to speak with Officer Davis, she wanted to go out and talk to the policeman but "I was scared." Such evidence is sufficient to support the jury's determination that defendant restrained Gibson, that such restraint was unlawful and without Gibson's consent, and that such restraint was for the purpose of facilitating flight after commission of a felony by preventing Officer Davis from discovering that defendant had committed first degree burglary and arresting him. Accordingly, the trial court properly denied defendant's motion to dismiss the charge of second degree kidnapping.

II

Defendant argues that the State failed to present substantial evidence of a "breaking" by defendant into Gibson's house, and that therefore his conviction for first degree burglary cannot be sustained. Specifically, defendant contends that the State failed to show that the window through which defendant allegedly entered Gibson's home was closed prior to defendant's entry.

A "breaking" is an essential element of the crime of burglary, State v. Bell, 285 N.C. 746, 749, 208 S.E.2d 506, 508 (1974), and is defined as "any act of force, however slight, used to make an entrance 'through any usual or unusual place of ingress....' " State v. Eldridge, 83 N.C.App. 312, 314, 349 S.E.2d 881, 882-83 (1986) (quoting State v. Jolly, 297 N.C. 121, 127-28, 254 S.E.2d 1, 5-6 (1979)). A breaking is sufficiently shown by testimony that, prior to entry, the window or door through which the defendant allegedly made entry was closed. State v. Sweezy, 291 N.C. 366, 383, 230 S.E.2d 524, 535 (1976); Eldridge, 83 N.C.App. at 314-15, 349 S.E.2d at 883.

At trial, the State presented the testimony of Gibson who, when asked whether the window through which defendant allegedly entered her home was open or not prior to defendant's entry, stated, "Yeah, it was shut, certainly was." Furthermore, Gibson testified that defendant gained entry into her home by "jump[ing] through the window." This testimony constitutes substantial evidence of the breaking element of...