State v. ParkerState v. Parker
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Defendant Parker appeals his conviction of attempted second degree murder, first degree burglary, first degree kidnapping, second degree kidnapping and robbery with a dangerous weapon. Defendant Holloway appeals his conviction of first degree burglary, first degree kidnapping, second degree kidnapping and robbery with a dangerous weapon. Defendants were convicted in a joint
The State’s evidence at trial tended to show that both defendants attended a cook-out at the home of Randy Perry (Perry), Felicia Bynum (Bynum) and Teresa Moore (Moore) on Saturday, 28 March 1998. Around 4:00 a.m. on the following Monday morning, Moore had just begun preparing breakfast when she heard loud banging on the front door and someone yell, “Rocky Mount Police Department.” The noise woke up Perry and, as he approached the front door, two armed men entered the back door. Moore testified that although she could not see the men, she knew they were not policemen. She hid in a space between the freezer and the counter in the kitchen out of sight of the assailants. Perry testified that the men were wearing ski masks on their heads but had not yet pulled them down over their faces, allowing him to identify them. Perry identified the men as defendants Parker and Holloway, whom he had known for a number of years.
As the defendants approached Perry, they pulled their masks down over their faces and forced Perry into the bedroom with Bynum. They searched the room and then ordered Perry and Bynum out the back door to Perry’s car. Perry and Bynum were led back inside briefly to allow Perry to get the keys to his car and to allow Bynum to get her shoes. While inside, Perry testified that defendant Parker stole a necklace from a shelf in the house. During this time, Perry repeatedly spoke to Holloway, asking him “B, man, why are you doing this?” Defendant Parker also called out to defendant Holloway, referring to him as “B.” Outside, defendant Perry unsuccessfully attempted to wrestle the gun away from defendant Parker, after which defendant Holloway told defendant Parker to kill Perry because he “knew exactly who he is.” Defendant Parker then fired a shot which struck Perry in the back of the head. Bynum was pursued by defendants as she ran away but was able to escape.
Although Perry was seriously wounded, he was able to walk back inside and call his family. Moore emerged from hiding and Bynum soon returned. All three testified at trial that they were able to recognize one or both of defendants on the night of the incident. Defendants did not offer any evidence.
Defendants raise issues on appeal both individually and jointly. We first address defendant Parker’s sole assignment of error that the trial court committed plain error by instructing the jury on the issue of attempted second degree murder. At the time of defendant’s trial in April 1999, attempted second degree murder was recognized as a crime in this State. See State v. Cozart, 131 N.C. App. 199, 203, 505 S.E.2d 906, 909-10 (1998). However, since defendant’s conviction, our State Supreme Court has held that the “crime denominated as ‘attempted second-degree murder’ does not exist under North Carolina law.” State v. Coble, 351 N.C. 448, 453, 527 S.E.2d 45, 49 (2000). Thus, defendant’s conviction of that crime must be vacated. See State v. Tew, 352 N.C. 362, 544 S.E.2d 557 (2000).
The State concedes that our Supreme Court’s holding in
Coble
is controlling. However, the State argues that because the conviction of attempted second degree murder was consolidated for judgment with the conviction of first degree kidnapping, and both are classified as Class C felonies, resentencing is not required for defendant Parker. The trial court consolidated both crimes for judgment and sentenced defendant Parker to 116 to 149 months. The presumptive minimum sentence for each of those offenses at defendant Parker’s prior record level is 93 to 116 months.
In the case of
State v. Brown,
350 N.C. 193, 513 S.E.2d 57 (1999), the defendant received a consolidated sentence of thirty years in connection with her conviction of solicitation to commit murder and conspiracy to commit murder. On appeal, the Supreme Court vacated the conviction of solicitation to commit murder. The Court held that judgment on the conspiracy to commit murder conviction must be remanded to the trial
In the case at bar, defendant Parker’s conviction of first degree kidnapping would support a sentence of 116 to 149 months. However, whether that crime warrants the sentence imposed in connection with the two crimes is a matter for the trial court to reconsider. Thus, the case must be remanded for resentencing.
We next address the assignments of error set forth by defendant Holloway individually. Defendant Holloway first asserts that the charge of robbery with a dangerous weapon was improperly submitted to the jury because a fatal variance existed between the indictment and the State’s proof at trial. The indictment for robbery with a dangerous weapon charged that defendant Holloway “unlawfully, willingly and feloniously did steal, take, and carry away another’s personal property . . . from the presence, and person of Randy Murphy Perry and Felicia Bynum.” However, the trial court’s instructions to the jury stated that a verdict of guilty was proper if the jury believed defendant Holloway “took or carried away property from the person or presence of a person.” Defendant Holloway asserts that the insertion of plural victims in the indictment as compared to the requirement of only a single victim in the jury instructions constitutes reversible error.
“The use of a conjunctive in the indictment does not require the State to prove various alternative matters alleged.” State v. Montgomery, 331 N.C. 559, 569, 417 S.E.2d 742, 747 (1992), citing State v. Williams, 314 N.C. 337, 356, 333 S.E.2d 708, 721 (1985). Here, the evidence presented at trial showed that both defendants, acting in concert, forced Perry and Bynum into the bedroom where Parker stole the necklace. Although the indictment alleges two victims, there are no substantial discrepancies between the allegations in the indictment and the evidence presented at trial. Further, defendant Holloway has failed to cite any authority in support of this assignment of error. Thus, it is overruled.
Defendant Holloway next contends that he was improperly resentenced by the trial court, resulting in an unauthorized increase of his sentence. Defendant Holloway was initially sentenced for the consolidated offenses of first degree kidnapping and second degree kidnapping to a minimum of 100 months and a maximum of 120 months. The maximum term, as established by
This Court has held that “absent precedent, we are bound by the plain language of the act in determining the legislative intent.”
State v. Caldwell,
125 N.C. App. 161, 162, 479 S.E.2d 282, 283 (1997).
The Structured Sentencing Act clearly provides for judicial discretion in allowing the trial court to choose a minimum sentence
within a specified range.
Caldwell
at 162, 479 S.E.2d at 283. However, the language of the Act provides for no such discretion in regard to maximum sentences. The legislature did not provide a range of possible maximum sentences nor did it create a vehicle to alter the maximum sentences based on the circumstances of the case as with minimum sentences.
See
We now address defendants’ joint assignments of error, the first of which is that the trial court improperly denied their motion to dismiss for insufficiency of the evidence. Defendants assert that the testimony of the three witnesses — Perry, Bynum and Moore — differed in several respects and was “inherently incredible.” Further, defendants point to the absence of any physical evidence that would link these defendants to the crimes.
“In ruling on a motion to dismiss, the issue before the trial court is whether substantial evidence of each element of the offense charged has been presented, and that defendant was the perpetrator of the offense.” State v. Carr, 122 N.C. App. 369, 371-72, 470 S.E.2d 70, 72 (1996). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994). All the evidence, whether direct or circumstantial, must be considered by the trial court, in the light most favorable to the State, with all reasonable inferences to be drawn from the evidence being drawn in favor of the State. State v. Rose, 335 N.C. 301, 439 S.E.2d 518, cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 883 (1994). “The trial court is not required to determine that the evidence excludes every reasonable hypothesis of innocence prior to denying a defendant’s motion to dismiss.” State v. Riddick, 315 N.C. 749, 759, 340 S.E.2d 55, 61 (1986).
Here, the State presented the testimony of three people who were victims of and eyewitnesses to the criminal activity. These witnesses testified that two armed intruders entered the house late at night, forced Perry and Bynum out of the house at gun point, re-entered the house, stole jewelry and shot Perry in the back of the head. The State also presented evidence that these witnesses knew the intruders and recognized them as the defendants. We find the evidence, taken in the light most favorable to the State, to be sufficient to uphold defendants’ convictions.
Defendants next argue that the trial court erred in failing to instruct the jury on the charge of second degree kidnapping as a lesser-included offense to the first degree kidnapping instruction. The crime of kidnapping occurs when one confines, restrains, or removes from one place to another a person for the purpose of:
(1) Holding such other person for a ransom or as a hostage or using such other person as a shield; or
(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; or
(4) Holding such other person in involuntary servitude in violation of G.S. 14-43.2.
In the case of State v. Jerrett, 309 N.C. 239, 262, 307 S.E.2d 339, 351 (1983), the Supreme Court stated that in order to leave a victim in a safe place within the meaning of the statute, a “conscious, willful action on the part of the defendant to assure that his victim is released in a place of safety” was required. Furthermore, in the case of State v. Raynor, 128 N.C. App. 244, 495 S.E.2d 176 (1998), the defendant fled the victim’s home after being overpowered by the victim. This Court held that the defendant did not release the victim in a safe place because there was no evidence of any “willful action” by the defendant to release the victim in a place of safety. Id.
In the case at bar, the evidence showed that defendants fled after shooting Perry and chased Bynum as she escaped,
After careful review, we find the defendants’ remaining assignments of error to be without merit. Thus, for the reasons discussed above, we find the defendants received a fair trial free from prejudicial error.
In State v. Parker, No. 98 CRS 5278, vacated and remanded for re-sentencing.
In State v. Parker, Nos. 98 CRS 5277, 5280, no error.
In State v. Holloway, Nos. 98 CRS 5327, 5329, no error.
Judges BIGGS and SMITH concur.