{ "id": 11794356, "name": "STATE OF NORTH CAROLINA v. KENTON THOMAS STINSON", "name_abbreviation": "State v. Stinson", "decision_date": "1997-08-19", "docket_number": "No. COA96-875", "first_page": "252", "last_page": "259", "citations": [ { "type": "official", "cite": "127 N.C. App. 252" } ], "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": "471 S.E.2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "357", "parenthetical": "An officer's \"offers of reward, or inducements to the defendant to make a statement\" are circumstances indicating confession is involuntary" } ], "opinion_index": 0 }, { "cite": "343 N.C. 495", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798855 ], "year": 1996, "pin_cites": [ { "page": "500", "parenthetical": "An officer's \"offers of reward, or inducements to the defendant to make a statement\" are circumstances indicating confession is involuntary" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0495-01" ] }, { "cite": "446 U.S. 291", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182222 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "301" }, { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/us/446/0291-01" ] }, { "cite": "368 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "433", "parenthetical": "holding admissible statements voluntarily made by defendant after he invoked his right to an attorney" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 351", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524420 ], "year": 1988, "pin_cites": [ { "page": "356", "parenthetical": "holding admissible statements voluntarily made by defendant after he invoked his right to an attorney" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0351-01" ] }, { "cite": "427 S.E.2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "128" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 344", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525424 ], "year": 1993, "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0344-01" ] }, { "cite": "424 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "opinion_index": 0 }, { "cite": "333 N.C. 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548224, 2548489, 2545554, 2545101 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/333/0170-02", "/nc/333/0170-04", "/nc/333/0170-01", "/nc/333/0170-03" ] }, { "cite": "417 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "266" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 433", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5314116 ], "year": 1992, "pin_cites": [ { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0433-01" ] }, { "cite": "483 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53878 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0647-01" ] }, { "cite": "347 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "767" }, { "page": "768" }, { "page": "767" } ], "opinion_index": 0 }, { "cite": "318 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739612 ], "year": 1986, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0141-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-39", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1994, "pin_cites": [ { "page": "(b)", "parenthetical": "emphasis added" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 750, "char_count": 16988, "ocr_confidence": 0.737, "pagerank": { "raw": 1.2717348202589176e-07, "percentile": 0.6149399057628456 }, "sha256": "03a0b585028aabb81500b0681862a2beb56d55ee6beae5bdcc672dfb0aa35f94", "simhash": "1:cb2a282ff6ef9ad2", "word_count": 2788 }, "last_updated": "2023-07-14T19:43:16.540119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and MARTIN, John C., concur.", "Judge COZORT concurred in this opinion prior to his resignation 31 July 1997." ], "parties": [ "STATE OF NORTH CAROLINA v. KENTON THOMAS STINSON" ], "opinions": [ { "text": "McGEE, Judge.\nDefendant appeals judgments convicting him of first degree kidnapping, second degree rape and indecent liberties filed 11 January 1996. The State\u2019s evidence tended to show that on the morning of 16 September 1994 the 14-year-old victim and her younger brother missed the school bus and rode the city bus to downtown Charlotte. The two children went to Big Ben\u2019s Grocery Store (Big Ben\u2019s) where they called their grandmother for a ride home. While at the store, they were approached by defendant who offered to drive the children to their grandmother\u2019s home. The children accepted and voluntarily entered defendant\u2019s car. The victim\u2019s brother told defendant to take him to his uncle\u2019s house and the victim asked to be taken to her grandmother\u2019s house.\nThe victim testified that after defendant had taken her brother to his uncle\u2019s house, defendant then asked the victim, who had remained in the car, how she intended to pay him for the ride and asked if she wanted to go to the park with him. Defendant then drove past the victim\u2019s grandmother\u2019s house without stopping despite the victim\u2019s statement that she could not go with him because her grandmother would be looking for her. Once they arrived at the park, defendant parked near the woods and began to kiss the victim and attempted to pull her pants down. She told defendant \u201cno\u201d but defendant did pull her pants down. The victim then told defendant \u201cno\u201d again, but defendant again pulled her pants down and told her that she had \u201cno other choice because ain\u2019t nobody out here.\u201d The victim testified that the angry tone of defendant\u2019s voice scared her and made her think defendant \u201cwould kill [her] or something.\u201d The victim then testified defendant climbed on top of her and pushed back the car seat. She told defendant to use a condom because she was menstruating. After putting on a condom, defendant then had sex with her. After he was done he said to the victim, \u201cAre you sure you\u2019re 14; because, you make love like you\u2019re 18.\u201d The victim further testified that she then put her clothes back on and he drove her home without making any stops.\nThe victim told her grandmother she had been raped and she was taken to the hospital where she was examined by Dr. Timothy Scott Missbach. Dr. Missbach testified that although he found no internal or external trauma, his findings were' consistent with the victim\u2019s statement that she had been raped.\nDetective Willie Lynn interviewed the victim and she described defendant and his car to the detective. Based on the victim\u2019s description and the detective\u2019s subsequent interview of an employee at Big Ben\u2019s where defendant had negotiated checks, the detective identified the temporary service where defendant worked, and from this source obtained defendant\u2019s address in Concord, North Carolina. After obtaining a warrant for defendant\u2019s arrest, the detective went to the Concord Police Department on 26 October 1994, and later that day accompanied Lieutenant Arthur of the Concord Police Department to defendant\u2019s house in a marked car. Detective Lynn told defendant of the warrants and defendant agreed to go to the Charlotte police department with him. Defendant was placed in an interrogation room upon arrival.\nInside the interrogation room, Detective Lynn read defendant his Miranda rights and asked defendant to sign a waiver of rights form. Defendant did not sign the form but instead wrote on it that he was afraid to sign and wanted a lawyer. The detective placed handcuffs on defendant and placed him in a police car and began escorting him to the Intake Center. On the way to the Intake Center defendant began to tell Detective Lynn his version of what had occurred on the day the alleged kidnapping took place. Defendant was advised by Detective Lynn that he did not have to talk to him. Defendant then told the detective that he wanted to cooperate and proceeded to tell Detective Lynn that he had given the victim and her brother a ride home and that after the brother was dropped off at his uncle\u2019s house, he asked the victim, who remained in the car, if she wanted to \u201chang out with him.\u201d According to defendant, the victim said \u201cyes.\u201d He then drove to the park and told the victim to take off her pants. He admitted that he had consensual intercourse with the girl and that digital penetration of the girl had occurred. He then stated that he drove the girl home after stopping to buy her some chips and something to drink.\nAt the close of the evidence, the trial judge instructed the jury on first degree kidnapping, indecent liberties with a minor, and second degree rape. The trial judge instructed the jury in part that in order to enter a verdict of guilty on the first degree kidnapping charge, the jury must find:\n[f]irst, that the defendant, unlawfully confined [the victim], . . . that is, that he imprisoned her, within a given area; and/or that he restrained her person. That is, [he] restricted her freedom of movement; and/or that he removed [the victim] from one place to another.\n. . . [the victim] had not reached her 16th birthday; and, that her parent, guardian and/or custodian, did not consent to this confinement, and/or restraint, and/or removal.\nConsent obtained or induced by fraud or fear is not consent.\nThird, . . . that the defendant confine[d] and/or restrain[ed]; and/or removed [the victim] for the purpose of committing second-degree rape.\nThe trial judge also instructed the jury that to convict the defendant of second degree rape it must find that the State proved three elements:\n[fjirst, that the defendant engaged in vaginal intercourse with [the victim]. Vaginal intercourse is the penetration, however slight, of the female sex organ by the male sex organ; and, the actual emission of semen is not even necessary.\nSecond, that the defendant used or threatened to use force sufficient to overcome any resistance that [the victim] might have made.\nThe force necessary to constitute rape does not have to be actual physical force. Fear or coercion may take the place of physical force.\nAnd [third] ... that [the victim] did not consent... that is, the vaginal intercourse, was against her will.\nThe trial judge also instructed the jury that \u201cindecent liberties\u201d is defined as \u201cimmoral, improper or indecent touching or act by the defendant upon the child\u201d and to convict defendant on this charge, the jury must find:\n[t]hat [defendant] engaged in vaginal intercourse with [the victim] and/or that he penetrated her vaginal area or vagina with his finger. . . . that the [victim] had not reached [her] 16th birthday . . . that the defendant was at least 5 years older than the child; and had reached his 16th birthday, at that time.\nThe jury found defendant guilty of all charges and he was sentenced to forty years in prison for first degree kidnapping, a consecutive term of forty years for second degree rape, and ten years for taking indecent liberties with a minor consecutive to the rape conviction.\nThe defendant argues that his Fifth Amendment rights against double jeopardy were violated when he was convicted of first degree kidnapping, second degree rape, and indecent liberties based on the sexual intercourse and digital penetration of the victim. We agree. In North Carolina, kidnapping is elevated from a second degree crime to a first degree crime \u201c[i]f the person kidnapped was not released by the defendant in a safe place or had been seriously injured or sexually assaulted,\u201d N.C. Gen. Stat. \u00a7 14-39(b) (1994) (emphasis added). If the defendant is convicted of other crimes for actions committed against the kidnapped victim, these same actions cannot be used to satisfy the sexual assault element of the kidnapping conviction to elevate the conviction to first degree. State v. Belton, 318 N.C. 141, 161, 347 S.E.2d 755, 767 (1986), overruled on other grounds, State v. Gaines 345 N.C. 647, 483 S.E.2d 396 (1997). As our Supreme Court stated in Belton, the principal case relied on by defendant in his appeal, if \u201cthe rape of [the victim] was the only sexual assault which could have formed the \u2018sexual assault\u2019 element of the first degree kidnapping\u201d defendant is charged with, defendant cannot be convicted of both crimes. Id. We hold that this case is controlled by Belton. As in Belton, the defendant in this case was convicted of more than one crime arising out of his sexual encounter with the victim. The State argues that this case is distinguished from Belton \u201cbecause there was more than one sexual assault committed by the defendant.\u201d Specifically the State argues that because the acts of vaginal rape and digital penetration are two distinct acts, the jury could have found that the digital penetration, rather than the vaginal rape, constituted the sexual assault element of first degree kidnapping, and thus there would be no violation of defendant\u2019s rights against double jeopardy for the rape conviction and the first degree kidnapping conviction. The State\u2019s argument is mere speculation as the trial court did not instruct the jury of this limitation necessary to avoid double jeopardy. There is nothing in the record to so indicate that without this limiting instruction the jury did not rely on evidence of the same sexual act for either or both the rape and indecent liberties conviction in addition to relying on the same sexual act for the first degree kidnapping conviction. The protection of a defendant\u2019s constitutional rights must be guaranteed, and our Supreme Court has \u201cheld that it cannot assume the jury adopted a theory favorable to the state\u201d not in violation of the defendant\u2019s rights when there are \u201calternative theories of conviction . . . available to a jury\u201d and must construe the \u201cambiguity in favor of defendant.\u201d Id. at 162, 347 S.E.2d at 768. We thus find error in the trial judge\u2019s instructions as there is ambiguity as to whether the jury relied on the same sexual act to convict for first degree kidnapping and/or second degree rape and indecent liberties.\nWe must next determine the proper procedure to cure this error. Our Supreme Court has suggested two possible remedies in a case involving a first degree kidnapping and a rape conviction: \u201c(1) arrest judgment on the first degree kidnapping conviction and resentence defendants for second degree kidnapping or (2) arrest judgment in either the rape or the sex offense convictions.\u201d Id. at 161, 347 S.E.2d at 767. Because it is impossible to determine from the record whether the same sexual acts used for the rape and indecent liberties convictions were the basis of the jury\u2019s first degree kidnapping conviction, we cannot ascertain whether either or both of these convictions in combination with the kidnapping conviction is unconstitutional. Rather than arresting judgment on both the rape and indecent liberties convictions, the remedy most consistent with the jury\u2019s verdict and the one we order is to arrest judgment on the first degree kidnapping conviction and remand the case to the trial court to re-sentence defendant for second degree kidnapping. The remaining judgments are not affected.\nDefendant next argues the trial court erred by instructing the jury on first and second degree kidnapping and refusing to instruct the jury on felonious restraint as a lesser included offense. We disagree. The distinction between felonious restraint and the kidnapping instruction is that the former does not require the state to prove defendant\u2019s purpose for the restraint. A trial court is only required to instruct the jury on a lesser included offense when there is evidence presented from which the jury could find that such offense was committed. State v. Shaw, 106 N.C. App. 433, 439, 417 S.E.2d 262, 266, cert. denied, 333 N.C. 170, 424 S.E.2d 914 (1992). \u201c[W]hen the defendant denies having committed the complete offense for which he is being prosecuted, and evidence is presented by the State of every element of the offense, and there is no evidence to negate these elements other than the defendant\u2019s denial that he committed the offense, then no lesser included offense need be submitted.\u201d Id. \u201cThe mere contention that the jury might accept the State\u2019s evidence in part and might reject it in part is not sufficient to require submission to the jury of a lesser offense.\u201d State v. Cerate, 109 N.C. App. 344, 351, 427 S.E.2d 124, 128 (1993). In this case defendant denied restraining the victim for any purpose. The only evidence presented by the State as to this element is that defendant restrained the victim for the purpose of sexually assaulting her. As there was no evidence presented by either party that she was restrained for any other purpose than a sexual assault, no instruction for a lesser included offense of felonious restraint is required. Id.\nNext defendant argues the trial court erred in denying his motion to suppress statements made to Detective Lynn after he had invoked his right to counsel. We disagree. Statements voluntarily made to officers after this right of counsel has been invoked, when not solicited by \u201cany words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response\u201d do not violate defendant\u2019s right to counsel. State v. Leak, 90 N.C. App. 351, 356, 368 S.E.2d 430, 433 (1988) (holding admissible statements voluntarily made by defendant after he invoked his right to an attorney) (quoting Rhode Island v. Ignis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 308 (1980)); State v. Chapman, 343 N.C. 495, 500, 471 S.E.2d 354, 357 (1996) (An officer\u2019s \u201coffers of reward, or inducements to the defendant to make a statement\u201d are circumstances indicating confession is involuntary).\nIn this case the evidence presented by defendant tended to show that immediately after defendant asked for an attorney he was placed in handcuffs and taken to jail and told by Detective Lynn that the detective would speak to the magistrate on behalf of. defendant. There was no evidence presented that the detective\u2019s statement that he would talk to the magistrate contained a promise to defendant to free him or otherwise lessen his punishment in exchange for any statement by defendant. Nor is the detective\u2019s handcuffing of defendant the type of conduct reasonably likely to elicit a response from defendant, but rather it is the type of conduct which occurs regularly in the daily practice of law enforcement. We thus find no merit to this argument.\nWe do not address defendant\u2019s final argument as it is waived pursuant to Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure as defendant did not timely object to the instruction at trial.\nNo error in part; remanded for resentencing.\nJudges COZORT and MARTIN, John C., concur.\nJudge COZORT concurred in this opinion prior to his resignation 31 July 1997.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Sondra C. P\u00e1nico, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant-appellant Kenton Thomas Stinson." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENTON THOMAS STINSON\nNo. COA96-875\n(Filed 19 August 1997)\n1. Kidnapping \u00a7 24 (NCI4th)\u2014 first-degree kidnapping, rape, indecent liberties \u2014 instructions\u2014reliance on same sexual act \u2014 judgment arrested\nJudgment was arrested on a first-degree kidnapping conviction and the case remanded for resentencing on second-degree kidnapping where defendant was convicted of first-degree kidnapping, second-degree rape, and indecent liberties and an ambiguity in the trial judge\u2019s instructions made it impossible to determine whether the jury relied on the same sexual act to convict defendant of first-degree kidnapping, and/or second-degree rape and indecent liberties.\n2. Kidnapping \u00a7 26 (NCI4th)\u2014 first-degree kidnapping\u2014 instruction on felonious restraint \u2014 denied\u2014insufficient evidence\nThe trial court did not err by instructing the jury on first-and second-degree kidnapping but refusing to instruct the jury on felonious restraint as a lesser included offense where there was no evidence presented by either party that the victim was restrained for any purpose other than a sexual assault.\n3. Evidence and Witness \u00a7 1255 (NCI4th)\u2014 statements to detective \u2014 subsequent to invocation of right to counsel\u2014 initiated by defendant\nThe trial court did not err by denying defendant\u2019s motion to suppress statements he made to a police detective after invoking his right to counsel where defendant made the statement while handcuffed and being transported to the Intake Center immediately after asking for an attorney. The detective\u2019s conduct was not reasonably likely to elicit a response from defendant; rather, it is the type of conduct which regularly occurs in the daily practice of law enforcement.\nAppeal by defendant from judgments entered 17 January 1996 by Judge James U. Downs in Mecklenburg County Superior Court. Heard in the Court of Appeals 2 April 1997.\nAttorney General Michael F. Easley, by Assistant Attorney General Sondra C. P\u00e1nico, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant-appellant Kenton Thomas Stinson." }, "file_name": "0252-01", "first_page_order": 288, "last_page_order": 295 }