{ "id": 12138870, "name": "STATE OF NORTH CAROLINA v. MARTIN CISNEROS CARRILLO", "name_abbreviation": "State v. Carrillo", "decision_date": "1994-08-02", "docket_number": "No. 934SC885", "first_page": "674", "last_page": "679", "citations": [ { "type": "official", "cite": "115 N.C. App. 674" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "340 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "405" }, { "page": "405" }, { "page": "408" } ], "opinion_index": 0 }, { "cite": "315 N.C. 738", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720408 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "745" }, { "page": "749" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0738-01" ] }, { "cite": "243 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "351" }, { "page": "351-52" }, { "page": "352" } ], "opinion_index": 0 }, { "cite": "294 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574036 ], "year": 1978, "pin_cites": [ { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0503-01" ] }, { "cite": "345 S.E.2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "165" } ], "opinion_index": 0 }, { "cite": "317 N.C. 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4776805 ], "year": 1986, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0148-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "117", "parenthetical": "citations omitted" }, { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "98", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-39", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 635, "char_count": 13606, "ocr_confidence": 0.735, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24612303651680079 }, "sha256": "dd2a611bc174648aed6523bceeb91750bab00c0ccebefc1022a7c2f78691cb41", "simhash": "1:e5aed92d7c6bdf51", "word_count": 2269 }, "last_updated": "2023-07-14T22:58:18.676868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and MARTIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MARTIN CISNEROS CARRILLO" ], "opinions": [ { "text": "ORR, Judge.\nDefendant and the victim, migrant laborers at the same labor camp, were housemates in a house in Sampson County, along with Juan \u201cShorty\u201d Colon. On 6 October 1992, the three housemates were drinking at home. At one point, the victim fell asleep and awoke to find defendant pulling at his clothes and holding a knife or razor to Ms throat, asking him who had cut Shorty.\nDefendant next attempted to take the victim into defendant\u2019s bedroom. The victim tried to resist by pulling on a mattress used to cover a window in the room. Defendant grabbed the victim\u2019s foot to prevent Ms escape. While the victim was on the floor in defendant\u2019s bedroom, defendant used his knife to peel an electrical cord\u2019s casing away to expose the bare wire. Defendant tied the victim\u2019s feet and hands with the exposed cord and then plugged the cord into an electrical outlet. According to the victim, \u201che [defendant] had the knife\u201d and therefore the victim was too scared to attempt fleeing. During the course of the next few minutes, defendant plugged the cord in five times, leaving the cord plugged in for minutes at a time. Each time that the cord was plugged in the victim suffered convulsions, shook, and felt hot and burMng. Defendant left the room once for a period of minutes while the victim was subjected to the electrical shock. The third time that defendant plugged m the cord he also doused the victim with beer. As defendant was repeatedly shocking the victim he continued questioning the victim, demandmg to know who had cut Shorty. Eventually defendant disentangled the victim from the cord and told the victim to leave.\nAfter leaving, the victim found someone to take him to the hospital, where emergency room physician Allan Danbeck examined the victim on the morning of 7 October 1992. Danbeck found large blisters between the victim\u2019s fingers and on his right thumb, as well as blisters and redness on his forearms, lower legs, and feet. Danbeck described the electrical burns as \u201chorrifying\u201d and \u201cextremely disfiguring and severe.\u201d Danbeck treated the victim, then had the victim transferred to the Chapel Hill Burn Center, where the victim underwent treatment for two months. The victim lost two fingers as a result of the electrical shock.\nI. Defendant\u2019s Motion to Dismiss Kidnapping Charges.\nDefendant\u2019s first assignment of error contends that the trial court erred in its refusal to grant defendant\u2019s motion to dismiss the charge of first degree kidnapping. According to defendant, there was insufficient evidence to persuade a rational trier of fact of each element of first degree kidnapping beyond a reasonable doubt.\nThe elements of kidnapping are defined in N.C.G.S. \u00a7 14-39:\n(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, . . ., shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:\n(1) Holding such person for a ransom or as hostage or using such other person as a shield; or\n(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; or\n(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person.\n(4) Holding such other person in involuntary servitude in violation of G.S. 14-43.2.\nN.C. Gen. Stat. \u00a7 14-39 (1993) (emphasis added). The State based its charge of kidnapping upon defendant\u2019s alleged confinement of the victim for the purpose of terrorizing him or for the purpose of doing serious bodily harm to him.\nOur Supreme Court has explained how courts are to address motions to dismiss: \u201cUpon defendant\u2019s 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 defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u201d State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citations omitted). The Court explained further that:\nThe evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom; contradictions and discrepancies are for the jury to resolve and do not warrant dismissal; and all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court in ruling on the motion.\nId. at 99, 261 S.E.2d at 117.\nA. Restraint\nDefendant\u2019s first contention is that there was not substantial evidence of restraint of the victim to support the charge of kidnapping. Taking all of the facts presented in the light most favorable to the State, we disagree. The victim testified that defendant pulled him by the foot when he tried to resist being pulled into the bedroom, that he was afraid to try to leave again because defendant was using a knife to trim the electrical cord, and that he was bound by that electrical cord. Defendant himself stated that he tied up the victim in order to electrocute him. This is more than enough evidence from which to draw a reasonable inference that defendant restrained and confined the victim on that night.\nDefendant also contends that the restraint essential to the kidnapping charge was an inherent and inevitable feature of the assault with a deadly weapon with intent to kill inflicting serious injury, and that therefore defendant could not be convicted of kidnapping in addition to assault. We note that there are certain felonies, such as forcible rape and armed robbery, which cannot be committed without some restraint of the victim. State v. Prevette, 317 N.C. 148, 157, 345 S.E.2d 159, 165 (1986); State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). Assault with a deadly weapon with intent to kill inflicting serious injury is not within that class of felonies. Such an assault may be committed without ever necessitating the restraint or confining of the victim \u2014 for example the firing of a gun at a victim.\nIn this case, the restraining of the victim with the electrical cord was not the assault with a deadly weapon. Plugging the cord into the wall outlet was the assault with a deadly weapon, as it was the act by which the victim suffered his severe burns. In addition, even if tying up the victim with the electrical cord were the actual assault, there was ample evidence of restraining the victim, described above, to support the restraint element of kidnapping.\nFurthermore, it is also \u201cwell 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.\u201d Fulcher at 523, 243 S.E.2d at 351-52. The Fulcher Court used the example of breaking and entering with intent to commit larceny, followed by the actual larceny. Id. at 523-24, 243 S.E.2d at 352. These axe two separate and distinct crimes arising out of the same course of action.\nIn this case, defendant clearly dragged the victim into the bedroom (against the victim\u2019s will) and kept the victim in the bedroom (through intimidation \u2014 showing the knife while peeling the cord\u2014 and through binding the victim\u2019s hands and feet with the cord) and only then proceeded to assault the victim by plugging the cord into the wall outlet. Plugging the cord into the outlet was not necessary to the restraint of the victim, and it was the proximate cause of the burn injuries to the victim. The electrical burning was the assault. Therefore, we find that the restraint element necessary for the charge of kidnapping is separate and distinct from the elements necessary to the charge of assault with a deadly weapon with intent to kill inflicting serious injury.\nB. Terrorizing the victim\nDefendant also contends that the State did not meet its burden of presenting substantial evidence that defendant restrained or confined the victim with the intent of terrorizing him. In determining whether the State provided substantial evidence, \u201cthe test is not whether subjectively the victim was in fact terrorized, but whether the evidence supports a finding that the defendant\u2019s purpose was to terrorize\u201d the victim. State v. Moore, 315 N.C. 738, 745, 340 S.E.2d 401, 405 (1986). The facts presented by the State, viewed in the light most favorable to the State, indicate that the State met this burden.\nTerrorizing is defined as \u201cmore than just putting another in fear. It means putting that person in some high degree of fear, a state of intense fright or apprehension.\u201d Moore at 745, 340 S.E.2d at 405. In the instant case, the evidence showed that defendant had already awakened the victim, pulling on his clothes and asking him questions, then put a knife or razor under his throat, beat him, and grabbed him by the ankle as he forced him into the bedroom. Defendant used his knife to peel the electrical cord before using the electrical cord to bind the victim\u2019s hands and feet. Defendant then plugged the stripped cord into an outlet five separate times, asked the victim repeatedly about Shorty, and once left the room with the victim \u201cplugged in.\u201d Finally, defendant poured beer over the victim\u2019s head while the exposed electrical cord binding the victim was plugged into an outlet. These are clearly the acts of one whose purpose was to place another person in \u201csome high degree of fear, a state of intense fright or apprehension.\u201d Id. These facts are certainly substantial enough for one to reasonably infer that defendant intended to terrorize the victim. Accordingly, we believe the trial court ruled properly and find no error in the trial court proceeding on the charge of first degree kidnapping.\nII. The jury instructions\nDefendant next assigns as error the jury instructions on the charge of first degree kidnapping. We disagree with defendant\u2019s contentions.\nIn State v. Moore, 315 N.C. 738, 749, 340 S.E.2d 401, 408 (1986), our Supreme Court explained that where a theory not supported by the evidence was included as a possible basis to form a verdict, and there was no method by which to determine whether the jury had indeed based its verdict upon the theory erroneously submitted, the trial court committed prejudicial error. Defendant contends that the jury\u2019s verdict failed to specify which statutory purpose (doing serious bodily harm or terrorizing) was the basis for its conviction for first degree kidnapping, and therefore may have been based upon a theory not supported by the evidence. However, because we find that there was evidence to support the terrorizing purpose, and because defendant has not asserted that there was insufficient evidence to prove the purpose of doing serious bodily harm, we find no error in the jury\u2019s verdict. Either theory could have properly been the basis for the jury\u2019s decision. We are fully satisfied that the verdict was based upon a theory properly submitted.\nNo error.\nJudges COZORT and MARTIN concur.", "type": "majority", "author": "ORR, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Sue Y Little, for the State.", "Nora Henry Hargrove for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MARTIN CISNEROS CARRILLO\nNo. 934SC885\n(Filed 2 August 1994)\n1. Kidnapping \u00a7 16 (NCI4th)\u2014 restraint \u2014 sufficiency of evidence\nEvidence of restraint was sufficient to require submission of a charge of first-degree kidnapping to the jury where it tended to show that defendant grabbed the victim\u2019s foot to keep him from escaping from a bedroom, and defendant tied the victim\u2019s hands and feet with electrical cord before assaulting him by plugging the cord with bare wires into an outlet.\nAm Jur 2d, Abduction and Kidnapping \u00a7 32.\n2. Kidnapping \u00a7 21 (NCI4th)\u2014 restraint or confinement\u2014 intent to terrorize \u2014 sufficiency of evidence\nIn a first-degree kidnapping case, the State met its burden of presenting substantial evidence that defendant restrained or confined the victim with the intent of terrorizing him where the evidence tended to show that defendant awakened the victim, pulled on his clothes and asked him questions, put a knife or razor under his throat, beat him, grabbed him by the ankle as he forced him into a bedroom, used his knife to peel an electrical cord before using it to bind the victim\u2019s hands and feet, plugged the stripped cord into an outlet five separate times, asked the victim repeatedly as to whether he had knifed a friend, once left the room with the victim plugged in, and poured beer over the victim\u2019s head while the exposed electrical cord binding the victim was plugged into an outlet.\nAm Jur 2d, Abduction and Kidnapping \u00a7 32.\nAppeal by defendant from judgment entered 11 March 1993 by Judge Ernest Fullwood in Sampson County Superior Court. Heard in the Court of Appeals 13 April 1994.\nDefendant Martin Cisneros Carrillo (\u201cdefendant\u201d) was convicted of both kidnapping and assault with a deadly weapon with intent to kill inflicting serious injury as a result of his attack upon Alberto Martinez (\u201cthe victim\u201d) on 6 October 1992. Defendant appeals his conviction for kidnapping on several grounds: 1) the trial court erred in denying Ms motion to dismiss the charge of first degree Mdnapping; and 2) the trial court erroneously instructed the jury on the charge of first degree kidnapping. Additional assignments of error enumerated by defendant were not addressed in defendant\u2019s brief and are deemed abandoned pursuant to Rule 28(b)(5) of the North Carolina Rules of Appellate Procedure.\nAttorney General Michael F. Easley, by Assistant Attorney General Sue Y Little, for the State.\nNora Henry Hargrove for defendant-appellant." }, "file_name": "0674-01", "first_page_order": 706, "last_page_order": 711 }