State v. ChinaÂ, 252 N.C. App. 30

Defendant Nathaniel Malone China was tried for multiple offenses arising from an October 2013 home invasion and assault on the victim (“Mark”), including breaking and entering, first‑degree sex offense, second‑degree kidnapping (reduced from first‑degree), intimidating a witness, misdemeanor assault (inflicting serious injury), and habitual felon status. Defendant pleaded guilty to habitual felon after trial.
Facts: defendant broke down the victim’s door, entered while the victim was dressing, punched and sexually assaulted the victim on the bed, then dragged him off the bed by his ankles and kicked and stomped him; the victim later fled and sought medical care.
Procedural: jury convicted on felonious breaking and entering, first‑degree sex offense, second‑degree kidnapping, intimidating a witness, and misdemeanor assault; the trial court later arrested judgment on the misdemeanor assault. Sentence structure included consecutive terms; total was later adjusted on remand instructions.
Trial testimony included evidence that defendant had previously been incarcerated and had called the victim’s partner from prison; defendant objected pretrial and at a bench conference but did not contemporaneously object when the witness testified before the jury.
On appeal defendant argued (1) the prison‑call testimony was inadmissible and (2) there was insufficient evidence to support the kidnapping conviction because any restraint was inherent to the sexual assault.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of testimony that defendant called from prison	State: testimony shows background and timeline; admissible	China: testimony about prior incarceration was improper 404(b)/prejudicial evidence and should have been excluded	Not preserved for appeal—defendant failed to object in the jury’s presence; issue waived and not reviewed on merits
Sufficiency of the evidence for second‑degree kidnapping (restraint beyond that inherent in the sexual assault)	State: evidence supports restraint to terrorize the victim (kidnapping)	China: restraint was only that necessary to commit the sexual and physical assaults, so kidnapping conviction cannot stand	Reversed as to kidnapping: insufficient evidence that restraint exceeded that inherent in the accompanying assaults; kidnapping conviction vacated; judgments corrected and sentencing order adjusted

State v. Thibodeaux, 352 N.C. 570 (discussing preservation of evidentiary objections)
State v. Ray, 364 N.C. 272 (clarifying preservation rules and Rule 103(a) issues)
State v. Fulcher, 294 N.C. 503 (holding kidnapping requires restraint separate from that inherent in another felony)
State v. Ripley, 360 N.C. 333 (describing statutory evolution of kidnapping and reiterating Fulcher principle)
State v. Boyce, 361 N.C. 670 (explaining when kidnapping may be a separate transaction supporting multiple convictions)
State v. Cross, 345 N.C. 713 (standard for ruling on motions to dismiss—substantial evidence of each element)
State v. Smith, 300 N.C. 71 (defining substantial evidence)
State v. Hunt, 365 N.C. 432 (motion to dismiss standard and role of inferences for the State)