An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.


               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA15-266

                                 Filed: 20 October 2015

Mecklenburg County, Nos. 13 CRS 30542, 214471-73

STATE OF NORTH CAROLINA

              v.

JAMARIO JERMAINE MCCLURE


       Appeal by Defendant from judgment entered 8 August 2014 by Judge C.

Thomas Edwards in Mecklenburg County Superior Court. Heard in the Court of

Appeals 23 September 2015.


       Attorney General Roy Cooper, by Assistant Attorney General Bethany A.
       Burgon, for the State.

       Glover & Petersen, P.A., by Ann B. Petersen, for Defendant.


       STEPHENS, Judge.


       In this appeal, Defendant presents two issues for our consideration:              (1)

whether the removal of a robbery victim was sufficiently separate and distinct from

that crime so as to support an additional charge of second-degree kidnapping, and (2)

whether a jury instruction on the doctrine of recent possession of stolen property was

warranted. After careful review, we answer both questions in the affirmative, and,

accordingly, we find no error in the trial of Defendant Jamario Jermaine McClure.
                                   STATE V. MCCLURE

                                   Opinion of the Court



                             Factual and Procedural History

      On the morning of 5 November 2012, Malik Douglas was asleep in the home at

1115 Greenleaf Avenue in Charlotte where he lived with his stepfather and mother,

Roslyn McClendon. Douglas, an eleventh-grade student who had been suspended

from school, was the only person in the home after his mother left for work about 7:30

a.m. A little after 8:30 a.m., Douglas was awakened by a noise. After discovering

that there was no one at the front door, Douglas noticed a light on in his mother’s

room. When he investigated, Douglas discovered a man going through his mother’s

belongings. When Douglas asked what the man was doing, he responded that he was

a friend of Douglas’ mother and that she had invited him to the house. Douglas left

his mother’s room and headed down the hall, intending to call the police. When

Douglas looked back, he saw the intruder pointing a gun at him. The man forced

Douglas to his own bedroom and demanded all of the phones and money Douglas had.

After obtaining a cell phone, a landline telephone, and about $40 or $50 from Douglas,

the man asked whether there were any illegal drugs in the home. When Douglas told

the man there were not, he forced Douglas back into McClendon’s room where

Douglas noticed a black bag that contained, inter alia, his mother’s Coach pocketbook.

The intruder told Douglas to lie face down on the floor. After Douglas complied, the

man ran out of the house through the front door. Douglas borrowed a cell phone from

a neighbor and called 911.



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                                  Opinion of the Court



      Charlotte-Mecklenburg Police Department (“CMPD”) officers responded to the

call. Douglas described the intruder as a 25-year-old black man about 5 feet 11 inches

tall with long deadlocked hair past his shoulders, a dark complexion, and gold teeth.

CMPD crime scene investigators discovered a broken window in McClendon’s room

and took fingerprints from the scene. When she arrived home, McClendon discovered

that her laptop computer and jewelry were missing, including her 1990 class ring

from East Mecklenburg High School. A few days later, CMPD Detectives Stephen

Todd and Michael Peacock showed Douglas a photo lineup of six black men, one of

whom was a possible suspect, but Douglas was not able to identify the intruder.

      On 10 April 2013, CMPD Detective David Dickinson discovered information in

a database of pawnshop sales that someone using McClure’s driver’s license as

identification sold jewelry, including McClendon’s class ring, to Brownlee Jewelers

on 5 November 2012 just after 1:00 p.m. Based upon this information, on 12 April

2013, warrants were issued for McClure’s arrest. CMPD officers failed to locate

McClure at his mother’s home, but McClure later called the CMPD and agreed to

turn himself in. When McClure arrived at the police department, he was arrested,

given his Miranda warnings, and interrogated. McClure waived his Miranda rights

and admitted having sold the jewelry to Brownlee Jewelers. However, McClure

explained that he bought the jewelry for $60 cash and some marijuana from a man




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                                  Opinion of the Court



he met on the street. Detective Todd put together a new photo lineup that included

a photograph of McClure. Douglas identified McClure as the intruder.

      On 29 April 2013, the grand jury returned indictments charging McClure with

robbery with a dangerous weapon, second-degree kidnapping, and breaking and

entering with the intent to commit a felony therein. On 29 July 2013, McClure was

indicted for having attained the status of an habitual felon. The cases came on for

trial at the 4 August 2013 criminal session of Mecklenburg County Superior Court.

After the jury returned guilty verdicts on the criminal charges, McClure entered a

plea admitting his status as an habitual felon. The trial court consolidated all of the

verdicts into a single judgment and sentenced McClure to 88 to 118 months in prison.

McClure gave notice of appeal in open court.

                                     Discussion

      McClure argues that the trial court erred in (1) denying his motion to dismiss

the kidnapping charge for insufficiency of the evidence, and (2) instructing the jury

on the doctrine of recent possession of stolen property. We find no error.

I. Motion to dismiss the kidnapping charge

      McClure first argues that the trial court erred in denying his motion to dismiss

the kidnapping charge for insufficiency of the evidence. We disagree.

      “This Court reviews the trial court’s denial of a motion to dismiss de novo.”

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted).



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                                   Opinion of the Court



“Upon [a] defendant’s motion for dismissal, the question for the Court is whether

there is substantial evidence (1) of each essential element of the offense charged, or

of a lesser offense included therein, and (2) of [the] defendant’s being the perpetrator

. . . . If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526

S.E.2d 451, 455 (citation and internal quotation marks omitted), cert. denied, 531

U.S. 890, 148 L. Ed. 2d 150 (2000). “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, 78-79, 265 S.E.2d 164, 169 (1980) (citations omitted). “In making

its determination, the trial court must consider all evidence admitted, whether

competent or incompetent, in the light most favorable to the State, giving the State

the benefit of every reasonable inference and resolving any contradictions in its

favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation omitted),

cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).

      Under our General Statutes,

             [a]ny person who shall unlawfully confine, restrain, or
             remove from one place to another, any other person 16
             years of age or over without the consent of such person . . .
             shall be guilty of kidnapping if such confinement, restraint
             or removal is for the purpose of . . . [f]acilitating the
             commission of any felony or facilitating flight . . . following
             the commission of a felony. . . .




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                                  Opinion of the Court



N.C. Gen. Stat. § 14-39(a)(2) (2013). “If the person kidnapped was released in a safe

place by the defendant and had not been seriously injured or sexually assaulted, the

offense is kidnapping in the second degree.” Id. § 14-39(b).

             The term “restrain,” while broad enough to include a
             restriction upon freedom of movement by confinement,
             connotes also such a restriction, by force, threat or fraud,
             without a confinement. Thus, one who is physically seized
             and held, or whose hands or feet are bound, or who, by the
             threatened use of a deadly weapon, is restricted in his
             freedom of motion, is restrained within the meaning of this
             statute.

State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978).

      Noting the double jeopardy implication, our Supreme Court has held “that

[section] 14-39 was not intended by the Legislature to make a restraint, which is an

inherent, inevitable feature of such other felony, also kidnapping so as to permit the

conviction and punishment of the defendant for both crimes.” Id. Accordingly, the

restraint required to prove kidnapping must be “separate and apart from that which

is inherent in the commission of the other felony.” Id.

             On the other hand, it is well established that two or more
             criminal offenses may grow out of the same course of
             action, as where one offense is committed with the intent
             thereafter to commit the other and is actually followed by
             the commission of the other . . . . In such a case, the
             perpetrator may be convicted of and punished for both
             crimes. Thus, there is no constitutional barrier to the
             conviction of a defendant for kidnapping, by restraining his
             victim, and also of another felony . . . , provided the
             restraint, which constitutes the kidnapping, is a separate,



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                                    Opinion of the Court



               complete act, independent of and apart from the other
               felony.

Id. at 523-24, 243 S.E.2d at 351-52. For example, in a case where the defendants

kidnapped a woman in a parking lot and forced her into nearby woods where she was

raped, our Supreme Court held:

               Removal of [the victim] from her automobile to the location
               where the rape occurred was not such asportation as was
               inherent in the commission of the crime of rape. Rather, it
               was a separate course of conduct designed to remove her
               from the view of a passerby who might have hindered the
               commission of the crime. To this extent, the action of
               removal was taken for the purpose of facilitating the felony
               of first-degree rape. Thus, [the] defendant’s conduct fell
               within the purview of [section] 14-39 and the evidence was
               sufficient to sustain a conviction of kidnapping under that
               section.

State v. Newman, 308 N.C. 231, 239-40, 302 S.E.2d 174, 181 (1983).

      At the close of the State’s evidence in this case, McClure moved to dismiss all

charges. The trial court denied that motion, and, after McClure rested his case

without offering any evidence, he again moved to dismiss all charges. Again, the trial

court denied the motion. McClure then made an additional motion to dismiss the

kidnapping charge, contending there was insufficient evidence of restraint beyond

that inherent and inevitable in the commission of a robbery. The trial court denied

that motion.

      On appeal, McClure contends the latter denial was error because his removal

of Douglas at gunpoint from Douglas’ mother’s room to Douglas’ bedroom and back


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                                   Opinion of the Court



again “was a mere technical asportation and insufficient to support conviction for a

separate kidnapping offense[,]” citing State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d

439, 446 (1981), to support his argument.        In Irwin, one of two men who were

attempting to rob a drugstore “forced [an employee] at knifepoint to walk from her

position near the fountain cash register to the back of the store in the general area of

the prescription counter and safe.” Id. Our Supreme Court held that the “removal to

the back of the store was an inherent and integral part of the attempted armed

robbery” because, “[t]o accomplish [the] defendant’s objective of obtaining drugs it

was necessary that [one of the two store employees present] go to the back of the store

to the prescription counter and open the safe.” Id.

      McClure also relies heavily on the removal of the victims in State v. Payton,

198 N.C. App. 320, 679 S.E.2d 502 (2009), as being analogous to his walking Douglas

up and down the hall in his case. In Payton, two women

             were ordered at gunpoint to move from the “bathroom area”
             to the bathroom and to maintain a submissive posture, but
             neither was bound or physically harmed. After being
             questioned about where money could be located in the
             house, the door to the bathroom was closed. The women
             were in the bathroom for ten to fifteen minutes total while
             the three men completed the robbery.

Id. at 328, 679 S.E.2d at 507. This Court held that “the movement of the women from

the ‘bathroom area’ to the bathroom was a ‘technical asportation,’ such as seen in

Irwin,” noting that previous cases had established that



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                                    Opinion of the Court



               requiring the victims to lie on the floor while the robbery is
               taking place does not place the victims in greater danger
               than the robbery itself. Unlike [in State v.] Davidson, the
               victims in this case were not confined in another room in
               order to keep passersby from hindering the commission of
               the crime.”

Id. (emphasis added).

      We find Irwin and Payton distinguishable. Although the removal of Douglas

to his bedroom, where McClure forced Douglas to give him money and phones, was

integral to McClure’s commission of that portion of the robbery, McClure’s removal

of Douglas back to his mother’s room and his forcing Douglas to lie down on the floor

and not move were not. At that point, McClure had already robbed Douglas of the

money and phones and had already filled the black bag with McClendon’s pocketbook

and jewelry.     Thus, unlike the removal in Payton, which took place during the

commission of the robbery, the removal of Douglas to McClendon’s room where he

was forced to lie on the floor occurred after the robbery. We find the removal here

more analogous to that in State v. Davidson, where

               the perpetrators, including [the] defendant, forced the
               victims at gunpoint to walk from the front of the store some
               thirty to thirty-five feet to a dressing room in the rear
               where they bound them with tape and robbed both them
               and the store. Since none of the property was kept in the
               dressing room, it was not necessary to move the victims
               there in order to commit the robbery. Removal of the
               victims to the dressing room thus was not an inherent and
               integral part of the robbery. Rather, as in Newman, it was
               a separate course of conduct designed to remove the victims
               from the view of passersby who might have hindered the


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                                   Opinion of the Court



             commission of the crime. The evidence thus was sufficient
             under [section] 14-39 to sustain the kidnapping
             convictions, and the court properly denied [the] defendant’s
             motion to dismiss the kidnapping charges.

77 N.C. App. 540, 543, 335 S.E.2d 518, 520, disc. review denied and appeal dismissed,

314 N.C. 670, 337 S.E.2d 583 (1985), disc. review denied, 315 N.C. 393, 338 S.E.2d

882 (1986). McClure’s removal of Douglas to lie on the floor of McClendon’s room was

not necessary to the commission of the crime, but rather served to prevent anyone

from hindering McClure. For example, Douglas could have left the home to seek help

or followed McClure as he fled in order to report his vehicle or route of escape. In

sum, because the removal of Douglas to McClendon’s room “was not an inherent and

integral part of the robbery[, but r]ather, . . . was a separate course of conduct

designed to” prevent interference with the commission of the crime, “[t]he evidence

thus was sufficient under [section] 14-39 to sustain the kidnapping conviction[.]” See

id. The trial court did not err in denying McClure’s motion to dismiss the kidnapping

charge, and, accordingly, this argument is overruled.

II. Jury instruction on recent possession of stolen property

      McClure also argues that the trial court erred in instructing the jury, over his

objection, on the doctrine of recent possession of stolen property.         Specifically,

McClure contends that he presented a reasonable explanation for his possession of

McClendon’s class ring and other stolen items sold to the pawnshop on the day of the




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                                   Opinion of the Court



robbery so as to overcome any presumption about his possession of those recently

stolen goods. We disagree.

      “[Arguments] challenging the trial court’s decisions regarding jury instructions

are reviewed de novo by this Court.” State v. Osorio, 196 N.C. App. 458, 466, 675

S.E.2d 144, 149 (2009) (citations omitted). “The prime purpose of a court’s charge to

the jury is the clarification of issues, the elimination of extraneous matters, and a

declaration and an application of the law arising on the evidence.” State v. Cameron,

284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973) (citations omitted), cert. denied, 418

U.S. 905, 41 L. Ed. 2d 1153 (1974). “[A] trial judge should not give instructions to the

jury which are not supported by the evidence produced at the trial.” Id. (citations

omitted). “Where jury instructions are given without supporting evidence, a new trial

is required.” State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995) (citation

omitted).

      “It is the general rule in this State that one found in the unexplained

possession of recently stolen property is presumed to be the thief.” State v. Raynes,

272 N.C. 488, 491, 158 S.E.2d 351, 353 (1968).

             In order for the doctrine [of recent possession] to be
             invoked, the State must prove beyond a reasonable doubt
             that: (1) the property is stolen; (2) it was found in the
             defendant’s custody and subject to his control and
             disposition to the exclusion of others; and (3) the possession
             was recently after the unlawful taking.




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                                  Opinion of the Court



State v. Wilson, 313 N.C. 516, 535, 330 S.E.2d 450, 463 (1985) (citations omitted).

“This is a factual presumption and is strong or weak depending on circumstances—

the time between the theft and the possession, the type of property involved, and its

legitimate availability in the community.” Raynes, 272 N.C. at 491, 158 S.E.2d at

353-54.

      In Raynes, for example, our Supreme Court explained that

             [t]he possession of an unmarked carton of Camel
             cigarettes, even in a short time after cigarettes have been
             stolen, in the absence of some further identification, will
             not be as strong as the possession of a recently stolen
             pillowcase, a three-strand pearl necklace, a diamond
             wedding band, a Hamilton watch, and a Norelco electric
             razor, and several hundred dollars in nickels, dimes,
             quarters and half-dollars. The possession of these stolen
             articles on Sunday morning following a breaking on the
             previous afternoon presents a strong case of circumstantial
             evidence.

Id. at 491, 158 S.E.2d at 354.

      On the other hand,

             [t]he inference which arises from the possession of recently
             stolen goods may be overcome by the presentation of a
             reasonable explanation for the possession of the goods.
             However, the issue of whether a reasonable explanation
             has been given must be decided by the jury. The apparent
             reasonableness of the explanation does not take the
             question from the jury nor does it necessarily lead to an
             acquittal.

State v. Earley, 38 N.C. App. 361, 363, 247 S.E.2d 796, 797-98 (1978) (citations

omitted). In Earley, the defendant argued that the trial court erred in denying his


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                                    Opinion of the Court



motion to dismiss because he had “presented sufficient evidence to overcome the

presumption or inference of guilt created by the doctrine of recent possession.” Id. at

363, 247 S.E.2d at 797. This Court held that

              the reasonableness of the defendant’s explanation for his
              possession of the recently stolen goods was an issue for the
              jury. As there was sufficient evidence to justify a finding
              by the jury that the defendant was in possession of recently
              stolen goods, the jury was entitled to draw the inference
              that the defendant had stolen the goods in question.

Id. at 364, 247 S.E.2d at 798. Nothing in that case suggested that the trial court

erred in instructing the jury on the doctrine of recent possession.

       McClure cites State v. Anderson, 162 N.C. 571, 572, 77 S.E. 238, 238 (1913),

for the proposition that it is error for a trial court to instruct the jury on the doctrine

of recent possession where the defendant offers a reasonable explanation of his

possession of the recently stolen property. We find that case distinguishable.

       In Anderson,

              the court charged the jury as follows: “The law is that
              whenever a person is found in possession of property which
              has been stolen and recently after the theft, the law
              presumes that the person so found in possession is the one
              who has stolen the property, and this presumption is
              strong or weak according to the length of time which has
              passed between the time of the stealing and the time the
              said property is found in his possession, and the burden
              then shifts to the person so found in possession to show, not
              beyond a reasonable doubt, but to the satisfaction of the
              jury, that he came by the property in a lawful manner, and
              thus rebut such presumption.”



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                                   Opinion of the Court



Id. (emphasis added). In reviewing that instruction, our Supreme Court held that

             when there are facts in evidence which would afford
             reasonable explanation of such possession, consistent with
             defendant’s innocence, and which, if accepted, do explain it
             satisfactorily, the correct rule does not require the
             defendant to satisfy the jury that his evidence in
             explanation is true. But in such case, stating the law as to
             the presumption arising from recent possession, the court
             should tell the jury that if the testimony offered in
             explanation raises a reasonable doubt of guilt [the]
             defendant is entitled to acquittal.

Id. at 574-75, 77 S.E. at 239. In other words, the instructions were faulty in that they

directed the jury that (1) someone found in possession of recently stolen property (2)

is presumed to be the thief (3) without consideration of the reasonableness of any

explanation offered by the defendant for his possession of the stolen property. See id.

      Here, in contrast, the trial court instructed the jury:

             The State seeks to establish the Defendant’s guilt by the
             doctrine of recent possession. For this doctrine to apply,
             the State must prove three things beyond a reasonable
             doubt. First, that property was stolen. Second, that the
             Defendant had possession of that property. A person
             possesses property when that person is aware of its
             presence and has both the power and intent to control its
             disposition or use. And third, that the Defendant had
             possession of the property so soon after it was stolen, and
             under such circumstances as to make it unlikely that the
             Defendant gained possession honestly.

             If you find these three things from the evidence, beyond a
             reasonable doubt, you may consider them, together with all
             other facts and circumstances, in deciding whether or not
             the Defendant is guilty of robbery or breaking or entering.



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                                   Opinion of the Court



(Emphasis added). Unlike the instruction held to be error in Anderson, the trial court

here did not tell the jury that the law presumes McClure stole the jewelry simply

because he possessed it shortly after it was stolen and without any consideration of

the reasonableness of his explanation regarding possession. Rather, the trial court

explicitly told the jury that it must consider, not only whether the jewelry was stolen,

whether McClure possessed it, and the length of time between the theft and his

possession, but also whether the circumstances of McClure’s possession “ma[d]e it

unlikely that the Defendant gained possession honestly.” Thus, unlike in Anderson,

the trial court did not shift the burden onto McClure to prove his possession was

lawful in order to rebut a presumption that he was the thief. Instead, the trial court

properly instructed the jury that it must consider the circumstances of McClure’s

possession of the stolen property, beyond simply the timing, in order to determine the

likelihood that his possession was lawful.

      In sum, none of the case law cited by McClure suggests that it is error for a

trial court to give an instruction on recent possession simply because the defendant

has offered an explanation to explain his possession of recently stolen goods.

Accordingly, McClure’s argument to the contrary is overruled.

      NO ERROR.

      Judges MCCULLOUGH and ZACHARY concur.

      Report per Rule 30(e).



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