               IN THE SUPREME COURT OF NORTH CAROLINA

                                    No. 95A17

                                 Filed 6 April 2018

STATE OF NORTH CAROLINA

             v.
NATHANIEL MALONE CHINA



      Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, ___ N.C. App. ___, 797 S.E.2d 324 (2017), finding no error in

part and vacating and remanding in part judgments entered on 5 February 2016 by

Judge Henry W. Hight, Jr. in Superior Court, Durham County.           Heard in the

Supreme Court on 12 December 2017.


      Joshua H. Stein, Attorney General, by Grady L. Balentine, Jr., Special Deputy
      Attorney General, for the State-appellant.

      Richard Croutharmel for defendant-appellee.


      HUDSON, Justice.


      Defendant Nathaniel Malone China was convicted by a jury on 1 February

2016 of a number of offenses, including felonious breaking or entering, first-degree

sexual offense, second-degree kidnapping, misdemeanor assault inflicting serious

injury, and intimidating a witness. Here we must decide whether there was sufficient

evidence of restraint that was separate and apart from that inherent in the

commission of the first-degree sex offense to support the kidnapping conviction. The
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                                    Opinion of the Court



Court of Appeals concluded that there was not and vacated defendant’s conviction for

second-degree kidnapping. State v. China, ___ N.C. App. ___, ___, 797 S.E.2d 324,

328-30 (2017).    Because we conclude that the evidence of restraint beyond that

inherent in the commission of the sex offense did suffice, we reverse the decision of

the Court of Appeals.

                         Factual and Procedural Background

      In 2008 defendant began a romantic relationship with Nichelle Brooks. At

some point thereafter, defendant was sent to prison. During his incarceration, until

the summer of 2013, defendant continued to talk occasionally with Ms. Brooks by

telephone. On one of these phone calls, Ms. Brooks, who was then involved with

Mark,1 informed defendant that she had begun a new relationship. Nonetheless,

defendant called Ms. Brooks after his release from prison seeking to resume their

prior relationship. Ms. Brooks agreed to meet with defendant at her apartment,

hoping to make clear that their relationship was over. Later that day, defendant met

Ms. Brooks at her apartment, spent the night, and then left the following morning.

      During this time, Ms. Brooks asked Mark not to visit her for a few days so that

she could “get things in order” with defendant. Believing that she had successfully

ended her relationship with defendant, Ms. Brooks told Mark that he could return to

her apartment. Mark visited Ms. Brooks on 14 October 2013 and spent the night at



      1  Like the Court of Appeals, we refer to the victim here by the pseudonym “Mark” for
simplicity and to protect his privacy.

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her apartment. The following morning, 15 October, Mark was still asleep when Ms.

Brooks left to take her daughter to the bus stop and to go to school at Durham Beauty

Academy.

      Mark awoke when he heard people outside of the apartment. He looked out

the window and, not seeing anything of concern, returned to bed. Moments later,

Mark heard a knock; he went to the door, looked through the peephole, and saw two

men he did not recognize. At trial, Mark identified one of these men as defendant.

As Mark made his way back to the bedroom, he heard banging on the door, enough

to cause the door to shake. Mark began to dress in his work uniform, when he heard

a loud boom as the door was kicked in.

      Defendant rushed into the apartment and ran towards the bedroom, cursing

at Mark. Before Mark had a chance to defend himself, defendant punched him in the

face, knocking him sideways onto the bed. Defendant then got on the bed and on top

of Mark, continuing to curse and strike Mark in the face with his fist. Defendant was

hitting Mark solely in the face up to this point, and the last blow caused Mark to roll

over completely onto his stomach. At that point, defendant punched Mark in the back

of the head, stunning him. Defendant then pulled down Mark’s pants and anally

penetrated him three times with his penis.

      Mark then swung his right arm to get defendant off of him, and defendant

“jumped off of” Mark. While Mark was “kicking away” at defendant, defendant

grabbed him by the ankles, yanking him off the bed and causing the back of Mark’s


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head to hit the floor. Defendant called to his companion, who came into the room;

together they began “kicking and stomping” Mark, who was on the floor with his back

pressed against a dresser.    Mark testified that the two men were kicking and

stomping “[m]y face, my head, my back, my ribs, my legs, my knees. . . . It was

everywhere.” During this time, Mark “was balling [his body] up” trying to protect

himself. Eventually, defendant and the other man stopped kicking, and Mark quickly

got up and ran out of the apartment. Mark still had his keys in his pocket, and

although he was dizzy and bleeding badly, he ran to his car and was able to drive to

his place of employment for help. Mark woke up at Duke Hospital in a significant

amount of pain. In addition to the injuries to his face, Mark testified that his “ribs

were really sore” and his knees were “really messed up,” that he “couldn’t walk,

really,” and that he was forced “to crawl to the bathroom at home to go to the

bathroom” for the next two to three weeks. Mark also suffered emotional injuries as

a result of the incident.

      On 4 November 2013, defendant was indicted in Durham County on charges of

felonious breaking or entering, felonious assault inflicting serious bodily injury, and

first-degree kidnapping.    The indictment for kidnapping alleged that defendant

“unlawfully, willfully and feloniously did kidnap [Mark], a person over the age of

sixteen years, without his consent, by unlawfully restraining him for the purpose of

facilitating the commission of a felony, doing serious bodily harm to [Mark], and

terrorizing [Mark].” On 7 April 2014, defendant was indicted on charges of first-


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                                  Opinion of the Court



degree sexual offense, crime against nature, and intimidating a witness. A separate

indictment on 1 June 2015 charged defendant as an habitual felon. The district

attorney dismissed the indictment for intimidating a witness, and defendant agreed

to proceed on that charge under a criminal bill of information. Additionally, the State

dismissed the charge of crime against nature before trial.

      Defendant was tried in the Superior Court in Durham County during the

criminal session that began on 26 January 2016 before Judge Henry W. Hight, Jr. At

trial, the State chose to proceed on second-degree kidnapping instead of first-degree

kidnapping. At the close of the State’s evidence, defendant moved for dismissal of the

charges. The trial court agreed to submit to the jury the charge of misdemeanor

assault inflicting serious injury, as opposed to felonious assault inflicting serious

bodily injury, and denied defendant’s motion with respect to the other charges. On

the charge of kidnapping, the trial court instructed the jury:

                    Count number three. Under counter [sic] number
             three, the Defendant has been charged with second degree
             kidnaping. For you to find the Defendant guilty of this
             offense, the State must prove three things beyond a
             reasonable doubt.
                    First, that the Defendant unlawfully restrained
             [Mark], that is, restricted his freedom of movement,
                    Second, that [Mark] did not consent to this restraint,
                    And, third, the Defendant did this for the purpose of
             terrorizing [Mark]. Terrorizing means more than just
             putting another in fear. It means putting that person in
             some high degree of fear, a state of intense fright or
             apprehension.




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                                    Opinion of the Court



On 1 February 2016, the jury found defendant guilty of felonious breaking or

entering, misdemeanor assault inflicting serious injury, second-degree kidnapping,

first-degree sexual offense, and intimidating a witness. Defendant then admitted to

having attained habitual felon status.            Judge Hight sentenced defendant to

consecutive terms of 150 days for misdemeanor assault inflicting serious injury, 78 to

106 months for breaking and entering, 88 to 118 months for second-degree

kidnapping, 336 to 416 months for first-degree sex offense, and 88 to 118 months for

intimidating a witness.     At the State’s request, the trial court conducted a

resentencing proceeding on 5 February 2016, at which Judge Hight arrested

judgment on the misdemeanor assault inflicting serious injury conviction. Defendant

appealed to the Court of Appeals.

      At the Court of Appeals, defendant first argued that the trial court erred in

allowing the jury to hear that he had been recently released from prison. China, ___

N.C. App. at ___, 797 S.E.2d at 327. The panel unanimously held that defendant did

not preserve that issue for appeal; therefore, they did not reach the merits of his

argument on that issue. Id. at ___, ___, 797 S.E.2d at 327-28, 330.

      Defendant next argued that the trial court erred in denying his motion to

dismiss the kidnapping charge because the evidence was insufficient to prove that

any confinement or restraint was separate and apart from the force necessary to

facilitate the sex offense. The Court of Appeals majority agreed, noting that this

Court has previously opined that “certain felonies . . . cannot be committed without


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                                   Opinion of the Court



some restraint of the victim” and the statutory offense of kidnapping “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. at ___, 797 S.E.2d at 329 (quoting

State v. Ripley, 360 N.C. 333, 337, 626 S.E.2d 289, 292 (2006)).         The majority

concluded that the evidence here “describe[d] a sudden attack” that “took no more

than a few minutes.” Id. at ___, 797 S.E.2d at 329. Further, the majority rejected

the State’s contention that removal of the victim from the bed to the floor and the

subsequent stomping and kicking of Mark was an action separate from the assaults

themselves. Id. at ___, 797 S.E.2d at 329. The majority then concluded that “there

is no evidence in the record that Mark was subjected to any restraint beyond that

inherent in defendant’s commission of first-degree sex offense and misdemeanor

assault inflicting serious injury.” Id. at ___, 797 S.E.2d at 329. Accordingly, the

majority concluded that the trial court erred by denying defendant’s motions to

dismiss the kidnapping charge.        Id. at ___, 797 S.E.2d at 329.     The majority

instructed the trial court on remand to vacate defendant’s conviction for second-

degree kidnapping and correct the judgments to retain defendant’s consecutive

sentences for his remaining convictions. Id. at ___, 797 S.E.2d at 329-30.

      Writing separately, Judge Dillon concurred in part and dissented in part; he

disagreed with the majority that there was insufficient evidence that defendant

“restrained the victim beyond the restraint inherent to the sexual assault.” Id. at ___,


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                                  Opinion of the Court



797 S.E.2d at 330 (Dillon, J., concurring in part and dissenting in part). Judge Dillon

noted that the removal of the victim from the bed to the floor occurred after defendant

completed his sexual assault on the victim. Id. at ___, 797 S.E.2d at 330. Judge

Dillon added, “Then, while the victim was on the floor, Defendant restrained the

victim by beating and kicking the victim, preventing the victim from getting up.” Id.

at ___, 797 S.E.2d at 330. In his dissent, Judge Dillon opined, “Granted, this separate

restraint did not last long. But this restraint which occurred while the victim was on

the floor was not inherent to the sexual assault which was completed while the victim

was on the bed.” Id. at ___, 797 S.E.2d at 330. The dissenting opinion also noted that

while defendant was also convicted of assault, the trial court arrested judgment on

the assault conviction. Id. at ___, 797 S.E.2d at 330 n.3. Accordingly, Judge Dillon

would have held that the verdict and judgment for kidnapping should stand. Id. at

___, 797 S.E.2d at 330.

      The State filed its appeal of right based on the dissent.

                                       Analysis

      The State argues that the trial court did not err in denying defendant’s motion

to dismiss the kidnapping charge because there was sufficient evidence of restraint

that was separate and apart from that inherent in the commission of the sex offense.

We agree.

      When ruling on a defendant’s motion to dismiss for sufficiency of the evidence,

the trial court must determine “whether there is substantial evidence (1) of each


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                                   Opinion of the Court



essential element of the offense charged, or of a lesser offense included therein, and

(2) of defendant’s being the perpetrator of such offense.” State v. Powell, 299 N.C. 95,

98, 261 S.E.2d 114, 117 (1980) (first citing State v. Roseman, 279 N.C. 573, 580, 184

S.E.2d 289, 294 (1971); then citing State v. Mason, 279 N.C. 435, 439, 183 S.E.2d 661,

663 (1971)). “Substantial evidence is relevant evidence that a reasonable mind might

accept as adequate to support a conclusion.” State v. Turnage, 362 N.C. 491, 493, 666

S.E.2d 753, 755 (2008) (quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920,

925 (1996)). Furthermore, “the trial court must consider the evidence in the light

most favorable to the State, drawing all reasonable inferences in the State’s favor.”

State v. Miller, 363 N.C. 96, 98, 678 S.E.2d 592, 594 (2009) (citing State v. McCullers,

341 N.C. 19, 28-29, 460 S.E.2d 163, 168 (1995)). Whether the State has presented

substantial evidence is a question of law, which we review de novo. State v. Cox, 367

N.C. 147, 150-51, 749 S.E.2d 271, 274-75 (2013) (citations omitted).

      The elements of kidnapping are defined by statute. See Ripley, 360 N.C. at

337, 626 S.E.2d at 292 (“The offense of kidnapping, as it is now codified in N.C.G.S. §

14-39, did not take form until 1975, when the General Assembly amended section 14-

39 and abandoned the traditional common law definition of kidnapping for an

element-specific definition.”). Section 14-39 now provides, in relevant part:

               (a) Any 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, or
             any other person under the age of 16 years without the
             consent of a parent or legal custodian of such person, shall
             be guilty of kidnapping if such confinement, restraint or

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                                     Opinion of the Court



              removal is for the purpose of:

                     ....

                     (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[.]

N.C.G.S. § 14-39 (2017).       Accordingly, to obtain a conviction for second-degree2

kidnapping the State is required to prove that a defendant (1) confined, restrained,

or removed from one place to another any other person, (2) unlawfully, (3) without

consent, and (4) for one of the statutorily enumerated purposes.

       Following the 1975 amendment to N.C.G.S. § 14-39, this Court addressed in

State v. Fulcher whether application of the statute on the theory of “restraint” could

result in a violation of the constitutional prohibition against double jeopardy. 294

N.C. 503, 523, 243 S.E.2d 338, 351 (1978). There the Court explained:

              Such restraint, however, is not kidnapping unless it is . . .
              for one of the purposes specifically enumerated in the
              statute. One of those purposes is the facilitation of the
              commission of a felony.

                    It is self-evident that certain felonies (e.g., forcible
              rape and armed robbery) cannot be committed without
              some restraint of the victim. We are of the opinion, and so

       2 First-degree kidnapping is defined in N.C.G.S. § 14-39(b), which requires the State
to prove, in addition to the elements set forth in subsection (a), at least one of the elements
listed in subsection (b): “that the victim was not released in a safe place, was seriously
injured, or was sexually assaulted.” State v. Bell, 311 N.C. 131, 137, 316 S.E.2d 611, 614
(1984).

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                                     Opinion of the Court



              hold, that G.S. 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. To hold otherwise would violate the constitutional
              prohibition against double jeopardy. . . . [W]e construe the
              word “restrain,” as used in G.S. 14-39, to connote a
              restraint separate and apart from that which is inherent in
              the commission of the other felony.

Id. at 523, 243 S.E.2d at 351.3 The Court recognized, however, that “two or more

criminal offenses may grow out of the same course of action” and concluded that there

is “no constitutional barrier . . . provided the restraint, which constitutes the

kidnapping, is a separate, complete act, independent of and apart from the other

felony.” Id. at 523-24, 243 S.E.2d at 351-52. Furthermore, “[s]uch independent and

separate restraint need not be, itself, substantial in time, under G.S. 14-39 as now

written.” Id. at 524, 243 S.E.2d at 352; see also id. at 522, 243 S.E.2d at 351 (“It is

equally clear that the Legislature rejected our determinations . . . that, where the

State relies upon . . . ‘restraint,’ such must continue ‘for some appreciable period of

time.’ Thus, it was clearly the intent of the Legislature to make resort to a tape




       3 Notably, the Court in Fulcher was specifically addressing the purposes enumerated
in N.C.G.S. § 14-39(a)(2) (“Facilitating the commission of any felony or facilitating flight of
any person following the commission of a felony”), which contemplates another crime (the
“other felony”) that typically will be charged concurrently with the kidnapping. 294 N.C. at
523-24, 243 S.E.2d at 351-52. Nonetheless, this Court has applied the same principle to the
enumerated purpose of “terrorizing” in N.C.G.S. § 14-39(a)(3). See State v. Prevette, 317 N.C.
148, 155-58, 345 S.E.2d 159, 164-66 (1986) (vacating the defendant’s conviction for
kidnapping for the purpose of terrorizing because the only evidence of restraint was an
inherent and inevitable feature of the victim’s murder, for which the defendant was
separately convicted).

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                                    Opinion of the Court



measure or a stop watch unnecessary in determining whether the crime of

kidnapping has been committed.”).

       The Court has since elaborated on this issue, stressing in State v. Pigott that

the “key question” is whether there is sufficient evidence of restraint, such that the

victim is “ ‘exposed . . . to greater danger than that inherent in the [other felony]

itself, . . . [or] is . . . subjected to the kind of danger and abuse the kidnapping statute

was designed to prevent.’ ” 331 N.C. 199, 210, 415 S.E.2d 555, 561 (1992) (third,

fourth, and fifth alterations in original) (quoting State v. Irwin, 304 N.C. 93, 103, 282

S.E.2d 439, 446 (1981)). In Pigott the defendant visited the victim (his employer)

after midnight asking for a loan. Id. at 202, 415 S.E.2d at 557. After the victim

refused, the defendant returned to the victim’s apartment that same night with a

gun. Id. at 202, 415 S.E.2d at 557. The defendant threatened the victim with the

gun and then “forced him to lie on his stomach and tied his hands behind his back.”

Id. at 210, 415 S.E.2d at 561. After searching the apartment for money, the defendant

returned to the victim and asked him whether he had any more money. Id. at 210,

415 S.E.2d at 561. The victim responded that he did not, and the defendant then

bound the victim’s feet to his hands. Id. at 210, 415 S.E.2d at 561. The defendant

then shot the victim in the head. Id. at 202, 210, 415 S.E.2d at 557, 561. At trial, the

defendant was convicted of first-degree murder, armed robbery, first-degree arson,

and first-degree kidnapping. Id. at 202, 415 S.E.2d at 556-57.




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                                  Opinion of the Court



      The defendant appealed directly to this Court, arguing that there was

insufficient evidence of a restraint separate and apart from that inherent in the

armed robbery. Id. at 208, 415 S.E.2d at 560. The Court disagreed, holding that

             all the restraint necessary and inherent to the armed
             robbery was exercised by threatening the victim with the
             gun. When defendant bound the victim’s hands and feet,
             he “exposed [the victim to a] greater danger than that
             inherent in the armed robbery itself.” This action, which
             had the effect of increasing the victim’s helplessness and
             vulnerability beyond the threat that first enabled
             defendant to search the premises for money, constituted
             such additional restraint as to satisfy that element of the
             kidnapping crime.

Id. at 210, 415 S.E.2d at 561 (alteration in original) (quoting Irwin, 304 N.C. at 103,

282 S.E.2d at 446). Accordingly, the Court affirmed the defendant’s conviction for

kidnapping. Id. at 210, 215, 415 S.E.2d at 561, 564.

      Similarly, Mark’s testimony here presented evidence which, taken in the light

most favorable to the State, showed that “all the restraint necessary and inherent to

the [sex offense] was exercised by” defendant’s getting on the bed, positioning himself

on top of Mark, and punching Mark in the face and head until Mark was stunned.

Id. at 210, 415 S.E.2d at 561. In contrast, once Mark swung at defendant and

defendant jumped off of Mark, defendant took additional action, “which had the effect

of increasing [Mark’s] helplessness and vulnerability beyond” the initial blows to

Mark’s head that enabled defendant to commit the sex offense. Id. at 210, 415 S.E.2d

at 561. Specifically, while Mark was “kicking away” at defendant, defendant grabbed



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                                 Opinion of the Court



Mark by the ankles and yanked him off the bed, causing Mark’s head to hit the floor.

Then defendant did not attempt to further sexually assault Mark, who was now on

the floor pressed against a dresser, but instead defendant called to his companion,

who came into the room, where the two of them proceeded to kick and stomp Mark

over his entire body. Mark did not attempt to kick or swing at defendant again, but

remained balled up on the floor until the kicking ceased. Defendant’s actions after

Mark swung at him constituted an additional restraint, see Fulcher, 294 N.C. at 523,

243 S.E.2d at 351 (describing “restraint” as a “restriction upon freedom of

movement”); see also State v. Beatty, 347 N.C. 555, 559, 495 S.E.2d 367, 370 (1998)

(describing “binding and kicking” as “forms of restraint” (emphasis added)), which

“exposed [Mark] to greater danger than that inherent in the [sex offense] itself,”

Irwin, 304 N.C. at 103, 282 S.E.2d at 446. For example, Mark testified that, as a

result of the kicking and stomping on his knees and legs, which had not been targeted

or harmed during the commission of the sex offense, his knees were “really messed

up,” rendering him unable to walk and forcing him “to crawl to the bathroom at home”

for two to three weeks afterwards. Accordingly, we conclude that this additional

restraint by defendant constituted “a restraint separate and apart from that which

[was] inherent in the commission of the” sex offense. Fulcher, 294 N.C. at 523, 243

S.E.2d at 351.

      In his brief before this Court, defendant largely focuses his argument not on

whether there was evidence of restraint separate and apart from that inherent in the


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sex offense, but whether there was evidence of restraint separate and apart from that

inherent in the commission of misdemeanor assault.4                  Defendant argues that

although the decision in Fulcher contemplated “certain felonies [that] cannot be

committed without some restraint of the victim,” id. at 523, 243 S.E.2d at 351

(emphasis added), Fulcher should be equally applicable to misdemeanor offenses

because the rationale was that principles of double jeopardy prohibit a defendant

from being punished twice for the same conduct. Id. at 523, 243 S.E.2d at 351

(“[N.C.G.S. §] 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. To hold otherwise

would violate the constitutional prohibition against double jeopardy.”); see also State

v. Sparks, 362 N.C. 181, 186, 657 S.E.2d 655, 659 (2008) (“The [Double Jeopardy]

[C]lause protects against three distinct abuses: a second prosecution for the same

offense after acquittal, a second prosecution for the same offense after conviction, and

multiple punishments for the same offense.” (alterations in original) (emphasis added)

(quoting State v. Thompson, 349 N.C. 483, 495, 508 S.E.2d 277, 284 (1998))).


       4  It is unclear whether defendant is conceding that the restraint involved in his
kicking and stomping the victim on the floor was separate and apart from that inherent in
the commission of the sex offense. In his brief, defendant asserts that “[i]f the trial court had
left out the stomping of the feet from the misdemeanor assault inflicting serious injury jury
charge, the evidence would have supported a guilty verdict on the kidnapping charge. This
is because the misdemeanor assault inflicting serious injury charge would be based totally
on punches with fists, which all occurred before or during the sexual assault.” On the other
hand, defendant also alleges in his brief that “the force necessary to restrain [Mark] was an
integral part of the sexual and physical assaults.”

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Assuming arguendo, however, that Fulcher applies equally to misdemeanor offenses,

here there was no double punishment, and no violation of the prohibition against

double jeopardy, because judgment was arrested on the misdemeanor assault

conviction.5 See, e.g., State v. Freeland, 316 N.C. 13, 23-24, 340 S.E.2d 35, 40-41

(1986) (stating that when the defendant’s multiple convictions did unconstitutionally

subject him to double punishment, the trial court on remand could remedy the

violation by arresting judgment on either of the conflicting convictions).

       We are careful to note that defendant’s sole argument on appeal with regard

to the conviction for kidnapping, both below and before this Court, is that the State

presented insufficient evidence of the element of “restraint.”6 On this narrow issue,

we conclude that the State presented sufficient evidence of the element of restraint

that was separate and apart from that inherent in the commission of the sex offense.




       5 In spite of this, defendant argues that judgment was arrested on the misdemeanor
assault conviction not because of any conflict with the kidnapping conviction, but because of
a conflict with the “serious injury” element of the sex offense conviction. Yet, defendant cites
to no case law, and we are not aware of any, regarding the relevance of this contention.

       6  Defendant does not, for example, argue that the State presented insufficient
evidence that any restraint by defendant, which was separate and apart from that inherent
in the sex offense, was also for the purposes of terrorizing Mark. See, e.g., State v. Moore, 315
N.C. 738, 743, 340 S.E.2d 401, 404 (1986) (“Since kidnapping is a specific intent crime, the
State must prove that the defendant unlawfully confined, restrained, or removed the person
for one of the eight purposes set out in the statute.”); id. at 745-46, 340 S.E.2d at 405-06
(concluding that when the defendant, in addition to making threats against the victim’s life,
“held the victim at gunpoint for almost three hours after inflicting a serious head injury upon
her, during which time he threatened to shoot himself in her presence and in the presence of
their three-year-old son, and he tried to get her to shoot him,” the evidence was sufficient to
support a finding that the defendant’s purpose was to terrorize the victim).

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       For the reasons stated, we hold that the trial court did not err in denying

defendant’s motions to dismiss the charge of second-degree kidnapping. On this

issue, we reverse the Court of Appeals and instruct that court to reinstate the

judgment of the trial court. The remaining issues addressed by the Court of Appeals

are not before this Court and its decision as to these issues remains undisturbed.

       REVERSED AND REMANDED.




       Justice BEASLEY dissenting.


       While I join in Justice Morgan’s dissenting opinion, I write separately to

discuss the majority’s continued expansion of what constitutes sufficient evidence to

support a conviction for kidnapping under N.C.G.S. § 14-39. The majority’s reasoning

permits the State, in future prosecutions, to sustain a conviction for second-degree

kidnapping (a Class E felony)1 with proof that the defendant engaged in an assault

(ranging from a Class 2 to Class A1 misdemeanor)2 which also had the effect of

restraining the victim. Because I believe the majority’s interpretation of N.C.G.S. §

14-39 transcends the bounds of the legislature’s expressed intent, the statute’s



       1N.C.G.S. § 14-39(b) (2017) (classifying second-degree kidnapping as a Class E felony).
       2 Compare N.C.G.S. § 14-33(a) (2017) (classifying simple assault as a Class 2
misdemeanor) with id. § 14-33(c) (2017) (classifying various forms of aggravated assaults,
including assault that inflicts serious injury, as Class A1 misdemeanors).

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                                  BEASLEY, J., dissenting



purpose, and notions of fundamental fairness, I respectfully dissent.

       A person is guilty of kidnapping if he or she “unlawfully confine[s], restrain[s],

or remove[s] from one place to another, any other person 16 years of age or over

without the consent of such person,” when “such confinement, restraint or removal is

for the purpose of,” inter alia, “[f]acilitating the commission of any felony or

facilitating flight of any person following the commission of a felony,” N.C.G.S. § 14-

39(a)(2) (2017), or “terrorizing the person so confined, restrained or removed,” id. §

14-39(a)(3) (2017).3    However, recognizing that “certain felonies . . . cannot be

committed without some restraint of the victim,” this Court has held that a restraint

which is inherent to the commission of the felony which would otherwise supply the

predicate felony under subdivision 14-39(a)(2) cannot also support a conviction for

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

Additionally, this Court has held that a restraint which is inherent to another

criminal offense committed by the defendant and for which the defendant is punished



       3  While N.C.G.S. § 14-39 provides other means of supporting a conviction for
kidnapping, only subdivisions 14-39(a)(2) and (a)(3) are relevant to this discussion. While
the jury was instructed under only subdivision 14-39(a)(3), restraint for the purpose of
“terrorizing” the victim, our precedent analyzing situations in which the “restraint” used to
establish kidnapping is inherent in the commission of other offenses committed by a
defendant has developed under subdivision (a)(2), see State v. Fulcher, 294 N.C. 503, 523-24,
243 S.E.2d 338, 351-52 (1978), and has been applied to convictions under subdivision (a)(3),
see State v. Prevette, 317 N.C. 148, 157-58, 345 S.E.2d 159, 165-66 (1986) (applying Fulcher
to prohibit the State from using the same conduct to support a conviction for murder and the
“restraint” element of kidnapping for the purpose of “terrorizing” the victim under
subdivision (a)(3)).


                                            -18-
                                   STATE V. CHINA

                                BEASLEY, J., dissenting



cannot support a conviction for kidnapping even when the State proceeds under

another provision of subsection 14-39(a) which does not require that the defendant

restrain the victim for the purpose of committing a felony. See State v. Prevette, 317

N.C. 148, 157-58, 345 S.E.2d 159, 165-66 (1986).

      In Prevette the defendant was convicted of first-degree murder and first-degree

kidnapping. Id. at 149, 345 S.E.2d at 160. The State presented evidence that the

victim died as a result of suffocation after she was bound and gagged and her hands

and feet were also restrained. Id. at 150-52, 345 S.E.2d at 161-62. Although the

State proceeded on a theory of kidnapping based on the argument that the defendant

restrained the victim for the purpose of terrorizing her, see N.C.G.S. § 14-39(a)(3),

and not for the purpose of committing the murder, see id. § 14-39(a)(2), this Court

held that the binding of the victim’s hands and feet, “which prevented the removal of

the gag,” was inherent to the murder and could not support a separate conviction for

kidnapping because “the restraint of the victim which resulted in her murder [was]

indistinguishable from the restraint used by the State to support the kidnapping

charge.” Prevette, 317 N.C. at 157-58, 345 S.E.2d at 165-66. The Court in Prevette

“examin[ed] the subject, language, and history” of the kidnapping and murder

statutes and concluded that the legislature did not “intend[ ] to authorize punishment

for kidnapping when the restraint necessary to accomplish the kidnapping was an

inherent part of the first degree murder.” Id. at 158, 345 S.E.2d at 165-66.

      While Fulcher and Prevette were premised in part on the constitutional

                                         -19-
                                      STATE V. CHINA

                                  BEASLEY, J., dissenting



prohibition against double jeopardy,4 see Fulcher, 294 N.C. at 523, 525, 243 S.E.2d at

351, 352; Prevette, 317 N.C. at 158, 345 S.E.2d at 166, both cases were actually

decided on grounds of statutory interpretation. The Court in Fulcher and Prevette

applied the long-accepted canon of statutory interpretation that, “[w]here one of two

reasonable constructions of a statute will raise a serious constitutional question, it is

well settled that our courts should adopt the construction that avoids the

constitutional question.” State v. T.D.R., 347 N.C. 489, 498, 495 S.E.2d 700, 705

(1998) (first citing In re Arthur, 291 N.C. 640, 642, 231 S.E.2d 614, 616 (1977); then

citing In re Arcadia Dairy Farms, Inc., 289 N.C. 456, 465-66, 223 S.E.2d 323, 328-29

(1976); and then citing Kent v. United States, 383 U.S. 541, 557, 86 S. Ct. 1045, 1055

(1966)); see also, e.g., Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102

(2002)       (per   curiam)       (explaining      that     North      Carolina       courts

“will avoid constitutional questions, even if properly presented, where a case may be

resolved on other grounds”).       Thus, the requirement that the “restraint” under

subsection 14-39(a) used to support a kidnapping conviction must not be the same as

the restraint inherent to another charged offense for which a defendant receives a

sentence is contained within the statute itself under Fulcher and Prevette.



         Of course, there is no double jeopardy violation associated with using defendant’s
         4

assaultive conduct to supply the “restraint” element for kidnapping because, as the majority
points out, the trial court arrested judgment on defendant’s conviction for misdemeanor
assault inflicting serious injury. The error instead stems from the fact that this conduct is
insufficient under the statute to support a conviction for kidnapping regardless of whether
defendant was convicted or sentenced for the assault offense.

                                            -20-
                                    STATE V. CHINA

                                 BEASLEY, J., dissenting



       A proper construction of section 14-39, in light of this Court’s concerns

regarding the expansion of the crime of kidnapping beyond the legislature’s intent,

would also require that the restraint necessary to support a conviction for kidnapping

go beyond an assault that has the incidental effect of restraining the victim. The

statute, in relevant part, requires that the defendant restrain the victim for the

purpose of “facilitating” a felony or “terrorizing” the victim.      See N.C.G.S. § 14-

39(a)(2), (3).   Here the majority’s interpretation permits defendant’s assaultive

conduct (pulling the victim off the bed and kicking the victim while he was on the

floor) to satisfy the “restraint” element but makes no argument that defendant used

this “restraint” for the purpose of terrorizing the victim beyond its recitation that the

assaultive conduct “exposed [the victim] to [a] greater danger than that inherent in

the [sex offense]” or “increas[ed] the victim’s helplessness and vulnerability” beyond

the earlier restraint used to commit the sex offense. See State v. Pigott, 331 N.C. 199,

210, 415 S.E.2d 555, 561 (1992). The majority’s reasoning is tautological; assaultive

conduct that takes place after a completed felony and has the effect of restraining the

victim will always “expose[ ] [the victim] to [a] greater danger” or “increas[e] the

victim’s helplessness and vulnerability” because such conduct is the greater danger.

       Undoubtedly, the defendant’s reprehensible criminal conduct (breaking and

entering into the residence, restraining the victim in order to commit the sex offense,

and then later kicking the victim) had the effect of terrorizing the victim; “[t]his Court

should not, however, permit these ‘bad facts’ to lure it into making ‘bad law.’ ” N.C.

                                          -21-
                                     STATE V. CHINA

                                  BEASLEY, J., dissenting



Baptist Hosps., Inc. v. Mitchell, 323 N.C. 528, 539, 374 S.E.2d 844, 850 (1988) (Meyer,

J., dissenting). Importantly, the majority is only relying on the assaultive conduct

defendant committed against the victim after the sex offense to support the

“restraint” element. Although most assaults have the effect of terrorizing the victim,

not all assaults are specifically engaged in for the purpose of terrorizing the victim,

and—more importantly—not all assaults constitute kidnapping. Yet the majority’s

opinion would permit any assault that has the effect of confining or restraining the

victim to be charged as kidnapping. See State v. Dix, 282 N.C. 490, 501, 193 S.E.2d

897, 903-04 (1973) (warning that an expansive definition of kidnapping which

“overruns other crimes for which the prescribed punishment is less severe” may

“create[ ] the potential for abusive prosecutions” by giving a prosecutor “ ‘naked and

arbitrary power’ to choose the crime [to] prosecute” (quoting People v. Adams, 34

Mich. App. 546, 560, 192 N.W.2d 19, 26 (1971), aff’d in part and rev’d in part, 389

Mich. 222, 205 N.W.2d 415 (1973))), superseded by statute, Act of June 25, 1975, ch.

843, 1975 N.C. Sess. Laws 1198 (rewriting N.C.G.S. § 14-39), as recognized in

Fulcher, 294 N.C. at 521-23, 243 S.E.2d at 350-51.5

       I would hold that defendant’s assaultive conduct (pulling the victim off the bed

and kicking him while he was on the floor) is insufficient to support a conviction for


       5 While Dix interpreted an earlier enactment of the kidnapping statute, see Dix, 282
N.C. at 492, 193 S.E.2d at 898 (citing N.C.G.S. § 14-39 (1969)), the thrust of the quoted
language recognizing the unjust consequences of expanding the definition of the offense
applies with equal force under the current statute.

                                           -22-
                                   STATE V. CHINA

                                BEASLEY, J., dissenting



kidnapping.    This factual scenario is not “the kind of danger and abuse the

kidnapping statute was designed to prevent.” State v. Irwin, 304 N.C. 93, 103, 282

S.E.2d 439, 446 (1981) (citing Dix, 282 N.C. 490, 193 S.E.2d 897); cf. State v. Moore,

315 N.C. 738, 745-46, 340 S.E.2d 401, 405-06 (1986) (holding that the evidence was

sufficient to show that the defendant’s restraint of the victim supported a conviction

under N.C.G.S. § 14-39(a)(3) for “terrorizing” the victim when the defendant (1) had

previously beaten the victim, (2) moved the victim from his car to his trailer, (3)

threatened to shoot the victim if she tried to run, (4) stated he would kill the victim

“before letting her take his children away from him,” and (5) intermittently pointed

a gun at himself or the victim during her confinement in his trailer for almost three

hours); State v. Rodriguez, 192 N.C. App. 178, 187-89, 664 S.E.2d 654, 660-61 (2008)

(holding that evidence was sufficient to show that the defendant’s restraint of the

victims supported a conviction under N.C.G.S. § 14-39(a)(3) when the defendant (1)

“physically abused some of the victims” in close proximity to and within the earshot

of other victims, (2) dunked one of the victims under water, (3) burned that victim “so

severely that his skin was peeling,” and (4) threatened other victims that they would

suffer a similar fate if they did not follow his commands or if they contacted law

enforcement). Therefore, I respectfully dissent.




                                         -23-
                                   STATE V. CHINA

                                MORGAN, J., dissenting




      Justice MORGAN dissenting.


      I respectfully dissent from my learned colleagues in the majority who have

determined that there was sufficient evidence of restraint beyond that which was

inherent in defendant’s commission of the first-degree sex offense to support the

second-degree kidnapping conviction. In my view, the Court of Appeals was correct

in its determination that the trial court erred in denying defendant’s motion to

dismiss the charge of second-degree kidnapping because the victim was not subjected

to any restriction upon his freedom of movement that was separate and apart from

the restraint which was an element of the first-degree sex offense. Accordingly, I

would affirm the opinion of the majority of the Court of Appeals in this matter.

      I agree with the majority’s starting premise that in order to obtain a conviction

for second-degree kidnapping, the State must prove that a defendant (1) confined,

restrained, or removed from one place to another any other person (2) unlawfully, (3)

without consent and (4) for one of the statutory purposes enumerated elsewhere in

N.C.G.S. § 14-39, including the provisions in N.C.G.S. § 14-39(a)(2) that the

“confinement, restraint or removal is for the purpose of        . . . [f]acilitating the

commission of any felony or facilitating flight of any person following the commission

of a felony,” and in N.C.G.S. § 14-39(a)(3) that the “confinement, restraint or removal

is for the purpose of . . . [d]oing serious bodily harm to or terrorizing the person so

confined, restrained or removed or any other person.” N.C.G.S. § 14-39(a) (2017).

                                         -24-
                                      STATE V. CHINA

                                   MORGAN, J., dissenting



       The crime of first-degree sex offense, as it was codified in N.C.G.S. § 14-27.4 at

the time that defendant committed the criminal act,1 was described in the statute as

follows:

              (a) A person is guilty of a sexual offense in the first degree
                  if the person engages in a sexual act:

                  (1) With a victim who is a child under the age of 13
                      years and the defendant is at least 12 years old and
                      is at least four years older than the victim; or

                  (2) With another person by force and against the will of
                      the other person, and:

                     a. Employs or displays a dangerous or deadly
                        weapon or an article which the other person
                        reasonably believes to be a dangerous or deadly
                        weapon; or

                     b. Inflicts serious personal injury upon the victim or
                        another person; or

                     c. The person commits the offense aided and
                        abetted by one or more other persons.

              (b) Any person who commits an offense defined in this
                  section is guilty of a Class B1 felony.

N.C.G.S. § 14-27.4 (2013).

       The majority expressly acknowledges that the Court of Appeals referenced this




       1 N.C.G.S. § 14-27.4 was rewritten and recodified as N.C.G.S. § 14-27.26 by Act of July
29, 2015, ch. 181, sec. 8, 2015 NC. Sess. Laws 460, 462 (applying to all offenses committed on
or after Dec. 1, 2015).

                                            -25-
                                    STATE V. CHINA

                                 MORGAN, J., dissenting



Court’s guidance rendered in State v. Ripley, 360 N.C. 333, 626 S.E.2d 289 (2006),

regarding the criminal offense of kidnapping and the proper recognition of its

elements as relates to other criminal offenses that may be committed during the same

transaction of events in which an act of kidnapping occurs. As quoted by the appellate

court majority below, we said in Ripley:

                    It is self-evident that certain felonies (e.g., forcible rape and
             armed robbery) cannot be committed without some restraint of
             the victim. We are of the opinion, and so hold, that G.S. 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. . . . [W]e construe the word “restrain,”
             as used in G.S. 14-39, to connote a restraint separate and apart
             from that which is inherent in the commission of the other felony.


Id. at 337, 626 S.E.2d at 292 (italics and alterations in original) (quoting State v.

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

      Our analysis in Ripley of this area of substantive criminal law governing the

commission of multiple criminal offenses continued as follows:

             Additionally, this Court noted that more than one criminal
             offense can grow out of the same criminal transaction, but
             specifically held “the restraint, which constitutes the kidnapping,
             [must be] a separate, complete act, independent of and apart from
             the other felony.” [Fulcher, 294 N.C.] at 524, 243 S.E.2d at 352;
             see also State v. Beatty, 347 N.C. 555, 559, 495 S.E.2d 367, 369
             (1998) (noting “a person cannot be convicted of kidnapping when
             the only evidence of restraint is that ‘which is an inherent,
             inevitable feature’ of another felony such as armed robbery”[ ]
             (quoting Fulcher, 294 N.C. at 523, 243 S.E.2d at 351)[)].



                                           -26-
                                     STATE V. CHINA

                                 MORGAN, J., dissenting



Id. at 337-338, 626 S.E.2d at 292 (first alteration in original).


      In the present case, it is clear that there is sufficient evidence in the trial record

to support the jury’s verdict that defendant is guilty of first-degree sex offense. In

perpetrating this offense, defendant satisfied its elements by engaging in a sexual act

with the victim by force and against the victim’s will. Lifting the salient facts from

the majority opinion on this point, defendant punched the victim in the face, knocking

him sideways onto the bed. Defendant then got on the bed and on top of the victim,

with defendant again using his fist to strike the victim in the face. After a blow from

defendant caused the victim to roll over onto his stomach, defendant then stunned

the victim with a punch to the back of the head, followed by defendant pulling down

the victim’s pants and anally penetrating the victim with his penis three times.

      Though not a statutory element of the criminal offense of first-degree sex

offense, restraint is the means by which defendant effectuated the crime by

implementing the force that subverted the will of the victim. The criminal offense of

second-degree kidnapping expressly includes restraint as one of the crime’s elements

delineated in N.C.G.S. § 14-39. Unfortunately, the majority is so occupied with the

need to emphasize that a second-degree kidnapping can occur in conjunction with a

first-degree sex offense—because restraint is required in the kidnapping offense but

not inherent in the first-degree sex offense—that the majority fails to realize, under

the unique facts and circumstances of the case at bar, that the restraint utilized to



                                           -27-
                                    STATE V. CHINA

                                 MORGAN, J., dissenting



constitute the force and subvert the will of the victim is the same restraint employed

in the full transaction of events that also yielded the miscalculated finding of second-

degree kidnapping.

      In addition, the majority improperly relied on State v. Pigott, 331 N.C. 199, 415

S.E.2d 555 (1992). The majority evaluated the actions of the defendant in Pigott in

visiting the home of his employer, unsuccessfully asking the employer for a loan,

leaving the employer’s home but returning with a gun, forcing the employer to lie on

the floor, binding the employer’s hands, ransacking the premises for money,

subsequently binding the employer’s feet to the employer’s hands, shooting the

employer in the head, looking around for more money, and then subsequently setting

the employer’s premises on fire. Id. at 202, 415 S.E.2d at 557. On appeal of the

defendant’s first-degree murder conviction to this Court, he unsuccessfully argued

that it was error for the trial court to fail to dismiss the charge of first-degree

kidnapping. Id. at 210, 415 S.E.2d at 561.

      We held in Pigott, in the context of the armed robbery charge which the

defendant also faced, that

             all the restraint necessary and inherent to the armed robbery was
             exercised by threatening the victim with the gun. When
             defendant bound the victim’s hands and feet, he “exposed [the
             victim to a] greater danger than that inherent in the armed
             robbery itself.” This action, which had the effect of increasing the
             victim’s helplessness and vulnerability beyond the threat that
             first enabled defendant to search the premises for money,
             constituted such additional restraint as to satisfy that element of


                                         -28-
                                      STATE V. CHINA

                                   MORGAN, J., dissenting



              the kidnapping crime.


Id. at 210, 415 S.E.2d at 561 (alteration in original) (quoting State v. Irwin, 304 N.C.

93, 103, 282 S.E.2d 439, 446 (1981)).       Based upon this analysis, this Court affirmed

the defendant Pigott’s first-degree kidnapping conviction.

       In the instant case the majority adapts the factual circumstances of Pigott to

justify its determination that separate and distinct acts of defendant here constituted

“additional restraint”: defendant’s act of grabbing the victim by the ankles and

yanking the victim off of the bed, which in turn caused the victim’s head to hit the

floor after the sex offense, and defendant’s act of summoning his companion to join in

kicking and stomping the victim’s body. In stating that these actions of defendant

amounted to an “additional restraint” which “exposed [Mark]2 to greater danger than

that inherent in the [sex offense] itself,” the majority concludes that this activity

constituted “a restraint separate and apart from that which was inherent to the

commission of the sex offense.”

       In attempting to align the case sub judice with Pigott, the majority buttresses

the point of my dissenting view.        There was a separate restraint of the victim

employer in Pigott that went beyond the restraint inherent in the armed robbery

offense itself so as to constitute the defendant’s commission of first-degree



       2 This pseudonym was utilized by the appellate courts for simplicity and to protect the
victim’s privacy.

                                            -29-
                                    STATE V. CHINA

                                 MORGAN, J., dissenting



kidnapping, in that the defendant intermittently perpetrated increasingly

heightened levels of restrictions on the victim’s freedom of movement while

committing the armed robbery offense, namely: forcing the victim to lie on the floor

after returning to the premises with a gun, looking for money after binding the

victim’s hands, continuing to look around for more money after binding the victim’s

feet to his hands and shooting the victim in the head as the victim continued to

apparently survive this ordeal until the defendant ignited the fire that burned

portions of the premises and generated deadly carbon monoxide fumes. Id. at 202,

415 S.E.2d at 560. On the other hand, there was no additional restraint which was

employed by defendant to commit the first-degree sex offense because the requisite

restraint was inherent in the perpetration of the crime. To the extent that the

majority considers defendant’s violence against the victim after the completion of the

sex offense to constitute an “additional restraint” to justify second-degree kidnapping

as a separate offense, such a strained view has no validity for four reasons: (1)

N.C.G.S. § 14-39(a)(2) is not applicable, because the felony of first-degree sex offense

was already completed such that the commission of second-degree kidnapping after

the perpetration of the sex offense could not have facilitated the sex offense; (2)

N.C.G.S. § 14-39(a)(2) also does not apply because the additional “restraint” was not

for the purpose of “facilitating [defendant’s] flight . . . following [his] commission of”

the first-degree sex offense; rather, the evidence in the trial record shows that the

victim ran out of the residence shortly after the two men stopped kicking him; (3)


                                          -30-
                                    STATE V. CHINA

                                 MORGAN, J., dissenting



N.C.G.S. § 14-39(a)(3) likewise is not applicable, because the trial record does not

afford this Court an opportunity to determine, on appellate review, at what points in

time the victim’s successive injuries occurred and when the terror that resulted in his

emotional injuries were inflicted; and (4) at trial, the jury found defendant guilty as

charged of misdemeanor assault inflicting serious injury which, coupled with the

first-degree sex offense indictment and conviction appropriately identified all offenses

for which defendant could be charged and convicted as a result of any injuries suffered

by the victim during the entire transaction of events, and the trial court arrested

judgment on the misdemeanor assault conviction.

      As we opined in Ripley and its predecessor cases, use of the word “restrain” in

N.C.G.S. § 14-39 means that the criminal restriction of one’s freedom of movement

must be separate and apart from the restraint that is inherent in the commission of

another felony. Under the facts and circumstances of this case, the restraint that was

inherent in defendant’s commission of the first-degree sex offense did not extend

beyond the crime’s parameters so as to support the jury’s guilty verdict of second-

degree kidnapping. Therefore, I would affirm the decision of the Court of Appeals.

      Justice BEASLEY joins in this dissenting opinion.




                                          -31-
