State v. Gordon, 248 N.C. App. 403

Background

On April 27, 2009, the victim (pseudonym “Sue”) was forced at gunpoint into a pickup truck by Bobby Lee Gordon, Jr.; he drove to a secluded, wooded dirt area off an I-85 access ramp and assaulted her sexually and with a gun. She escaped after a 15–20 minute struggle and ran across a four‑lane highway to her apartment.
Sue reported the crime to police the same day; she later moved out of state. Two years after the assault she identified Defendant from a photo lineup with a certainty she rated as a seven out of ten.
Police executed a search warrant in December 2012, recovered a silver handgun with a pearl grip from a vehicle on Defendant’s property, and arrested Defendant. Defendant made statements minimizing the incident during the search.
Defendant testified (through family witnesses) that he had dated Sue in early 2009 and challenged some ownership details about the pickup truck; the State did not pursue the allegation in the indictment that the victim’s sexual assault made kidnapping first‑degree, relying instead on the allegation she was not released in a safe place.
At trial the jury convicted Defendant of attempted first‑degree rape, first‑degree sexual offense, and first‑degree kidnapping; he was acquitted of assault by strangulation. Defendant appealed, raising (1) insufficiency of evidence that the victim was not released in a safe place for first‑degree kidnapping, and (2) trial error from allegedly improper prosecutorial remarks and the court’s response.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for first‑degree kidnapping (whether victim was released in a safe place)	State: Evidence that Defendant left Sue in a very secluded wooded clearing, from which she had to travel down an embankment and across a four‑lane highway while traumatized, supports an inference she was not released in a safe place.	Defendant: Sue was released in daylight, with clothes and phone, near an area she knew and able to walk to her home, so the release was in a safe place — at most second‑degree kidnapping.	Court: Affirmed—viewing evidence in State’s favor, a reasonable juror could find Sue was not released in a safe place; denial of dismissal was proper.
Prosecutor’s closing argument — expression of belief about witness credibility (objection sustained; curative instruction requested)	State: Prosecutor argued jurors should use common sense and their own observations to assess credibility; any brief reference to perspective was contextual and not an improper assertion of the prosecutor’s personal belief.	Defendant: Prosecutor stated (in part) that “based on my … I think she is telling the truth,” which improperly injected personal belief and required a curative instruction when objection was sustained.	Court: Affirmed—statement, read in context and immediately clarified, urged jurors to use their own judgment; not calculated to mislead or violate §15A‑1230; no curative instruction required absent request, and general jury instructions sufficed.
Trial court failure to intervene ex mero motu for allegedly improper clarification	State: The clarification (“I’m just arguing they should think she’s telling the truth…”) further explained the prosecutor’s appeal to jurors’ own judgment and was not the prosecutor’s personal belief.	Defendant: Court should have intervened sua sponte because the prosecutor’s remarks were improper and prejudicial.	Court: Affirmed—remarks were not so grossly improper as to require ex mero motu intervention; Defendant failed to show prejudice.

Key Cases Cited

State v. Fritsch, 351 N.C. 373 (standard for denial of motion to dismiss: substantial evidence of each element and defendant as perpetrator)
State v. Sakobie, 157 N.C. App. 275 (interpretation of “safe place” in kidnapping decided case‑by‑case)
State v. Ly, 189 N.C. App. 422 (release in a safe place requires affirmative act to assure safety; mere relinquishment of control insufficient)
State v. Monk, 286 N.C. 509 (trial court duty to censor improper remarks and to act ex mero motu for gross impropriety)
State v. Jones, 355 N.C. 117 (standard for reviewing failure to intervene ex mero motu in closing arguments)
State v. Peterson, 361 N.C. 587 (view prosecutorial remarks in broader context when assessing prejudice)
State v. Williams, 350 N.C. 1 (no error in failing to give curative instruction when objection sustained but no request made)