                   IN THE COURT OF APPEALS OF NORTH CAROLINA

                                             No. COA15-765

                                         Filed: 6 September 2016

Cleveland County, No. 05CRS56352, 12CRS848

STATE OF NORTH CAROLINA

                  v.

TONY KING, Defendant.


         Appeal by defendant from judgment entered on or about 14 January 2015 by

Judge Yvonne Mims Evans in Superior Court, Cleveland County. Heard in the Court

of Appeals 13 January 2016.


         Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Donna
         D. Smith, for the State.

         Michael E. Casterline, for defendant-appellant.


         STROUD, Judge.


         Defendant appeals judgment convicting him of second degree sexual offense

and second degree kidnapping. For the following reasons, we conclude there was no

error.

                                              I.    Background

         The State’s evidence tended to show that in August of 2005, Marie1 contacted

defendant to look at a rental property. Defendant arranged to meet Marie and drove


         1   A pseudonym will be used.
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                                            Opinion of the Court



her to the rental house. After they went inside for Marie to look at the house,

defendant grabbed Marie by the throat and began kissing her neck and breasts.

Defendant moved Marie from the hallway to a bedroom with his hands on her throat

and threw her onto a bed. Defendant ripped off Marie’s pants and placed his fingers

inside her vagina. Defendant tried to get Marie to perform oral sex on him, but she

refused. Marie tried to get away from defendant after they left the house, but she

ended up riding with defendant to return home. After Marie got back home, she told

her mother what had happened and Marie’s mother called the police. While she was

speaking with the police at her home, defendant called Marie asking, “Are you mad

at me?” and saying, “[I]f you meet me somewhere . . . I will pay you to keep your

mouth shut.” After a trial by jury, defendant was convicted of second degree sexual

offense and second degree kidnapping.2 Defendant appeals.

                                                 II.      Mistrial

         During defendant’s trial Sergeant Carl Duncan stated, “She’s been reliable to

me[,]” in regards to his prior interactions with Marie. The defense objected to this

statement, and the trial court sustained the objection. Defendant contends that “the

trial court erred in failing to declare a mistrial ex mero motu after Officer Duncan

improperly vouched for the credibility of the prosecuting witness.” (Original in all

caps.)



         2   The trial court arrested judgment for a first degree kidnapping conviction.

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                                    Opinion of the Court



                    The decision to grant a mistrial is within the trial
             court’s discretion. This is particularly true where, as here,
             defendant has not moved for a mistrial. A mistrial may be
             granted only when the case has been prejudiced at trial to
             such an extent that a fair and impartial verdict is
             impossible. A trial court’s decision regarding a motion for
             mistrial will not be disturbed on appeal unless the trial
             court clearly has abused its discretion.

State v. Jaynes, 342 N.C. 249, 279, 464 S.E.2d 448, 467 (2005) (citations omitted).

      Even assuming arguendo that Sergeant Duncan “vouched for the credibility of

the prosecuting witness[,]” his statement, which was both objected to and sustained,

did not prejudice defendant such “that a fair and impartial verdict is impossible.” Id.

(“In the present case, the trial court sustained each of defendant’s three objections.

As a result, no evidence prejudicial to defendant was introduced in response to the

prosecutor’s questions concerning defendant’s alleged prior crimes or convictions.

The trial court’s actions were sufficient to remedy any possible harm resulting from

the mere asking of the three questions by the prosecutor. The trial court did not err

by failing to declare a mistrial.     This assignment of error is overruled.”)    This

argument is overruled.

                                   III.     Motion to Dismiss

      Defendant next argues that “the trial court erred in denying the motion to

dismiss the kidnapping charge, when the evidence was insufficient to prove that any

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

the sex offense.” (Original in all caps.)


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                  The standard of review for a motion to dismiss is
            well known. A defendant’s motion to dismiss should be
            denied if there is substantial evidence of: (1) each essential
            element of the offense charged, and (2) of defendant’s being
            the perpetrator of the charged offense. Substantial
            evidence is relevant evidence that a reasonable mind might
            accept as adequate to support a conclusion. The Court must
            consider the evidence in the light most favorable to the
            State and the State is entitled to every reasonable
            inference to be drawn from that evidence.

State v. Johnson, 203 N.C. App. 718, 724, 693 S.E.2d 145, 148 (2010) (citations and

quotation marks omitted).

                   The elements of kidnapping are: (1) confining,
            restraining, or removing from one place to another; (2) any
            person sixteen years or older; (3) without such person’s
            consent; (4) if such act was for the purposes of facilitating
            the commission of a felony. This Court has previously held
            that the offense of kidnapping under N.C. Gen. Stat. § 14–
            39 is a single continuing offense, lasting from the time of
            the initial unlawful confinement, restraint or removal until
            the victim regains his or her free will. . . .
                   In situations involving both kidnapping and sexual
            offense, the restraint of the victim must be a complete act,
            independent of the sexual offense.
                   It is self-evident that certain felonies (e.g.,
                   forcible rape and armed robbery) cannot be
                   committed without some restraint of the
                   victim. [O]ur Supreme Court has held 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. We 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


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                                    Opinion of the Court



                     felony.
                     The test of the independence of the act is whether
              there was substantial evidence that the defendant
              restrained or confined the victim separate and apart from
              any restraint necessary to accomplish the acts of rape,
              statutory sex offense, or crime against nature. Further, the
              test does not look at the restraint necessary to commit an
              offense, rather the restraint that is inherent in the actual
              commission of the offense.

State v. Martin, 222 N.C. App. 213, 220-21, 729 S.E.2d 717, 723 (2012) (citations,

quotation marks, ellipses, and brackets omitted). Furthermore, our Supreme Court

has clarified that “[t]he key question is whether the victim is exposed to greater

danger than that inherent in the [charged offense] itself or subjected to the kind of

danger and abuse the kidnapping statute was designed to prevent.” State v. Johnson,

337 N.C. 212, 221, 446 S.E.2d 92, 98 (1994) (citation and quotation marks omitted).

       Both defendant and the State cite numerous cases turning on small factual

nuances to determine whether the restraint in each particular case was independent

from or an inherent part of each crime at issue. Such small distinctions are not

necessary in this particular case, since Marie testified that after defendant committed

his sexual offenses against her she wanted to “take [off] running[,]” but defendant

ordered her to “‘[f]ix [herself] up’” and told her “‘this is going to be our secret.’” Marie

walked out of the room “speed walking” and defendant told her, “‘You better slow

down.’” Marie then decided she was “going to cooperate just so I can get back – just

Lord get me back – get me back to my mama.” Marie had no other way to get home,



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                                  Opinion of the Court



since she had ridden with defendant, and defendant had already told her not to try

to walk away from him. Defendant and Marie then got into defendant’s car. While

defendant did ultimately drive Marie back to her home, defendant also forced Marie

to get into a car with him immediately after he had sexually assaulted her. Forcing

Marie to ride in his car is exactly “the kind of danger and abuse the kidnapping

statute was designed to prevent” and “exposed [her] to greater danger” than that

inherent in the sexual offenses, and thus the State did show sufficient evidence of the

element of restraint for the charge of second degree kidnapping to proceed to the jury.

Id.; see also State v. Boyce, 361 N.C. 670, 674-75, 651 S.E.2d 879, 882-83 (2007) (“The

State’s evidence in the present case sufficiently established that defendant prevented

the victim’s escape by pulling her back into her residence before the onset of the

robbery with a dangerous weapon. This restraint and removal was a distinct criminal

transaction that facilitated the accompanying felony offense and was sufficient to

constitute the separate crime of kidnapping under North Carolina law. That the

victim was removed just a short distance and only momentarily before the robbery

is irrelevant, as this Court long ago dispelled the importance of distance and

duration.”) Therefore, this argument is overruled.

                                  IV.    Conclusion

      For the foregoing reasons, we conclude there was no error.

      NO ERROR.



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                      Opinion of the Court



Judges ELMORE and DIETZ concur.




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