{ "id": 11219193, "name": "STATE OF NORTH CAROLINA v. CORNELIUS DION ROSS", "name_abbreviation": "State v. Ross", "decision_date": "1999-05-18", "docket_number": "No. COA98-467", "first_page": "310", "last_page": "315", "citations": [ { "type": "official", "cite": "133 N.C. App. 310" } ], "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": "338 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719370, 4715770, 4718701, 4719994, 4718878 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0393-05", "/nc/315/0393-04", "/nc/315/0393-01", "/nc/315/0393-03", "/nc/315/0393-02" ] }, { "cite": "335 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "520" }, { "page": "519-20" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 540", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524061 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/77/0540-01" ] }, { "cite": "486 S.E.2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "720", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 788", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11713440 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc-app/126/0788-01" ] }, { "cite": "414 S.E.2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2501123, 2502629, 2502194, 2498873, 2502586 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0120-01", "/nc/331/0120-03", "/nc/331/0120-05", "/nc/331/0120-02", "/nc/331/0120-04" ] }, { "cite": "410 S.E.2d 516", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "521" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 558", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523002 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/104/0558-01" ] }, { "cite": "472 S.E.2d 763", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "766", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "344 N.C. 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867648 ], "year": 1996, "pin_cites": [ { "page": "126", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0121-01" ] }, { "cite": "495 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1998, "pin_cites": [ { "page": "369-70", "parenthetical": "citations omitted" }, { "page": "369", "parenthetical": "citations omitted" }, { "page": "369-70", "parenthetical": "citations omitted" }, { "page": "369-70", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "347 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551295 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/347/0555-01" ] }, { "cite": "282 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1981, "pin_cites": [ { "page": "446", "parenthetical": "citation omitted" }, { "page": "446" }, { "page": "446" }, { "page": "446" }, { "page": "446" }, { "page": "542" }, { "page": "446" } ], "opinion_index": 0 }, { "cite": "304 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565336 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0093-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 14-39", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)(2)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 589, "char_count": 12481, "ocr_confidence": 0.766, "pagerank": { "raw": 1.5595780199486174e-07, "percentile": 0.6766894517788489 }, "sha256": "27c5b579a64a9c5a1f2d406db95b3900197c4972d46efdbe435150e539e210aa", "simhash": "1:8919c46e162e8c46", "word_count": 2106 }, "last_updated": "2023-07-14T19:41:36.377256+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge MARTIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CORNELIUS DION ROSS" ], "opinions": [ { "text": "McGEE, Judge.\nThe record in this case tends to show that on 25 December 1995 three men identified as Jackson, Wilkins and Bryant decided to rob George \u201cFrank\u201d Clark, Wilkins\u2019 acquaintance. They went to Wilkins\u2019 house in a car driven by Bryant to pick up a shotgun to use in the robbery. After they picked up the shotgun they stopped at a gas station, where Jackson telephoned defendant, Cornelius Dion Ross. Jackson, Wilkins and Bryant drove to defendant\u2019s house and picked him up. All four discussed plans for the proposed robbery. When they arrived at Clark\u2019s apartment, Jackson, Wilkins and defendant got out of the car, and Bryant remained in the car.\nClark was in his apartment with one of his co-workers, Mario Price. At approximately 8:00 p.m., Wilkins knocked on the door of Clark\u2019s apartment, determined that Clark was home, and asked to use the bathroom. Shortly thereafter, defendant and Jackson knocked on the door. Clark and Price went toward the door and one of them opened it. Defendant, standing in front of Jackson, asked if Wilkins had come in, and then asked, \u201cWho is Frank?\u201d to determine which occupant of the apartment was Clark. When Clark identified himself, defendant stepped aside, revealing Jackson, who was holding the shotgun. Jackson pointed the shotgun at Clark and Price and ordered them to step back and get down on the floor. Price backed up two or three steps and dropped to the floor in the apartment living room. Clark backed into the apartment kitchen, where he dropped to the floor. Defendant, meanwhile, closed the apartment door part way and apparently stood watch.\nJackson went into the kitchen where Clark was down on the floor and ordered Clark to take off his two rings and hand them over. Jackson then told Clark to take him to Clark\u2019s bedroom. In the bedroom, Jackson ordered Clark to get on the floor. Jackson then took money from a pair of Clark\u2019s trousers and also took a camcorder, a pager and a leather coat. Jackson called defendant to come into the bedroom. When defendant went to the bedroom door, Jackson tossed Clark\u2019s leather coat to defendant. Then Jackson, Wilkins and defendant fled the apartment.\nDefendant was convicted of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon and second-degree kidnapping. He was sentenced to seventy-five to ninety-nine months on the armed robbery conviction, twenty-five to thirty-nine months on the conspiracy conviction and 25 to 39 months on the second-degree kidnapping conviction, with the sentences to be served consecutively. Defendant appeals.\nDuring trial, defendant moved at the close of the State\u2019s evidence and at the close of all the evidence for dismissal of the second-degree kidnapping charge against him. Defendant assigns error to the trial court\u2019s denial of his motion to dismiss.\nN.C. Gen. Stat. \u00a7\u00a7 14-39(a)(2) and 1459(b) (1998 Cum. Supp.) define second-degree kidnapping:\n(a) Any person who shall unlawfully confine, restrain, or remove [another person] from one place to another . . . without the consent of such person . . . shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:\n(2) Facilitating the commission of any felony[.]\n(b) ... If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree[.]\nOur appellate courts have applied the statute in a number of cases in which second-degree kidnapping has been charged in connection with the commission of another felony.\nIn State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981), our Supreme Court stated:\n[W]e construe the phrase \u201cremoval from one place to another\u201d to require a removal separate and apart from that which is an inherent, inevitable part of the commission of another felony. To permit separate and additional punishment where there has been only a technical asportation, inherent in the other offense perpetrated, would violate a defendant\u2019s constitutional protection against double jeopardy. In an armed robbery, for example, punishment for two offenses would be sanctioned if the victim was forced to walk a short distance towards the cash register or to move away from it to allow defendant access. Under such circumstances the victim is not exposed to greater danger than that inherent in the armed robbery itself, nor is he subjected to the kind of danger and abuse the kidnapping statute was designed to prevent.\nId. at 103, 282 S.E.2d at 446 (citation omitted).\nIn State v. Beatty, 347 N.C. 555, 495 S.E.2d 367 (1998), our Supreme Court said, \u201c \u2018The key question... is whether the kidnapping charge is supported by evidence from which a jury could reasonably find that the necessary restraint for kidnapping \u201cexposed [the victim] to greater danger than that inherent in the armed robbery itself.\u201d \u2019 \u201d Id. at 559, 495 S.E.2d at 369-70 (citations omitted).\nIn considering a motion to dismiss, \u201c[t]he evidence must be considered in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from that evidence.\u201d State v. Roseborough, 344 N.C. 121, 126, 472 S.E.2d 763, 766 (1996) (citation omitted).\nIn the case before us, the defendant argues his actions in concert with Jackson did not amount to \u201ca removal separate and apart\u201d from the commission of the armed robbery. Irwin at 103, 282 S.E.2d at 446. The State argues that Jackson removed Clark from the apartment living room to the kitchen. However, the record does not support that assertion. The record indicates that, upon entering the apartment, Jackson pointed the shotgun at Clark and Price and ordered them to step away from the apartment door and get on the floor. Price backed up a few steps and dropped to the floor in the living room, while Clark backed into the apartment kitchen and dropped to the floor. The record contains no evidence that Jackson ordered Clark from the living room into the kitchen. Clark\u2019s testimony was that he backed all the way into the kitchen when Jackson entered the apartment and ordered him and Price to back up and get on the floor. \u201c[T]hat\u2019s as far as I could back up,\u201d Clark testified. The State\u2019s evidence, taken in its strongest light, falls short of showing that Clark\u2019s movement into the kitchen was a removal that was \u201cseparate and apart\u201d from the armed robbery. Irwin at 103, 282 S.E.2d at 446.\nJackson followed Clark into the kitchen and ordered Clark to take him to Clark\u2019s bedroom. In the bedroom, Jackson ordered Clark to the floor and then took money and other items from the bedroom. Defendant argues that Jackson\u2019s action ordering Clark into the bedroom was an \u201cinherent\u201d part of the armed robbery. Irwin at 103, 282 S.E.2d at 446.\nClark was the particular target of the robbery, and he was ordered into his bedroom as part of the robbery. Clark testified that while the two men were in the bedroom, Jackson asked Clark where he had his money. Clark responded that some money was in the pocket of trousers lying on the bedroom floor, and Jackson took the money from the trousers. While the two men were in the bedroom, Jackson also took the other items noted above. Further, the record contains no evidence suggesting that the removal of Clark to his bedroom as part of the robbery \u201cexposed [him] to greater danger than that inherent in the armed robbery itself.\u201d Beatty at 559, 495 S.E.2d at 369 (citations omitted).\nThe State argues that the facts before us are similar to those in State v. Joyce, 104 N.C. App. 558, 410 S.E.2d 516 (1991), cert. denied, 331 N.C. 120, 414 S.E.2d 764 (1992), an armed robbery case in which our Court upheld the trial court\u2019s refusal to dismiss second-degree kidnapping charges. We disagree. In Joyce, the victims of the robbery \u201cwere moved from one room to another room where they were confined.\u201d Id. at 567, 410 S.E.2d at 521. This Court noted that \u201c[t]he removals were not an integral part of the crime nor necessary to facilitate the robberies, since the rooms where the victims were ordered to go did not contain safes, cash registers or lock boxes which held property to be taken.\" Id. (emphasis added). The facts in the case before us are not comparable to those in Joyce. Clark was ordered to go to his bedroom, where Jackson questioned him about the location of his money and where Jackson took money and a number of items. Unlike in Joyce, the room where Jackson ordered his victim to go contained property that Jackson stole.\nThe State also directs our attention to State v. Brice, 126 N.C. App. 788, 486 S.E.2d 719 (1997), another armed robbery case in which our Court upheld the trial court\u2019s refusal to dismiss second-degree kidnapping charges, but awarded defendants a new trial on other grounds. But Brice, too, is distinguishable from the case before us. In Brice, while one defendant, Good, was in a bedroom robbing two male victims of valuables, an accomplice, Tate, was in the living room with a female victim. Defendant Tate threatened the woman with a gun and forced her to lie face down on the living room floor but took nothing from her. Brice at 791, 486 S.E.2d at 720 (emphasis added). In Brice, our Court held that terrorizing the woman in the living room was not an inherent part of the robbery taking place in the bedroom. Id. Moreover, while the Brice court did not address this point, we observe that in Brice, Tate\u2019s action threatening the woman with a gun in the living room \u201cexposed [her] to greater danger than that inherent in the armed robbery\u201d that was taking place in the bedroom. See Beatty at 559, 495 S.E.2d at 369-70 (citations omitted).\nState v. Davidson, 77 N.C. App. 540, 335 S.E.2d 518 (1985), disc. review denied, 315 N.C. 393, 338 S.E.2d 882 (1986), is another armed robbery case in which our Court denied a motion to dismiss a second-degree kidnapping charge. In Davidson, the robbers forced the victims to go thirty to thirty-five feet from the front of a store to a dressing room in the rear and bound the victims with tape. Davidson at 543, 335 S.E.2d at 520. The Davidson court reasoned that none of the store\u2019s property was kept in the dressing room and that moving the victims there was not an \u201cinherent\u201d part of the robbery. Id. Noting the distinction between actions that are \u201cinherent\u201d in an armed robbery and those that are not, the Davidson court, citing Irwin at 102-03, 282 S.E.2d at 446, said, \u201cA restraint which is an inherent, inevitable element of a felony such as armed robbery will not sustain a separate conviction for kidnapping under N.C. Gen. Stat. 14-39(a).\u201d Id. at 542, 335 S.E.2d at 519-20.\nIn the case before us, the victim Clark was ordered at gunpoint to go to his bedroom, where items were taken from him. Jackson\u2019s actions, while reprehensible, were an \u201cinherent\u201d part of the armed robbery. Irwin at 103, 282 S.E.2d at 446. Clark was not \u201cexposed . . . to greater danger than that inherent in the armed robbery[.]\u201d See Beatty at 559, 495 S.E.2d at 369-70 (citations omitted).\nIt was error for the trial court to deny defendant\u2019s motion to dismiss the charge of second-degree kidnapping, and the conviction for second-degree kidnapping is vacated.\nOur decision vacating the second-degree kidnapping charge makes it unnecessary for us to address defendant\u2019s other assignment of error related to that charge.\nWe have reviewed defendant\u2019s remaining assignment of error as to the trial of his case and find it to be without merit.\nVacated in part, no error in part.\nChief Judge EAGLES and Judge MARTIN concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Michael F Easley, by Associate Attorney General Bur\u00e9n R. Shields, III, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CORNELIUS DION ROSS\nNo. COA98-467\n(Filed 18 May 1999)\nKidnapping\u2014 second-degree \u2014 removal in connection with another felony\nThe trial court erred by denying defendant\u2019s motion to dismiss a charge of second-degree kidnapping in a prosecution for armed robbery, conspiracy, and second-degree kidnapping. The evidence falls short of showing that the victim\u2019s movement was a removal separate and apart from the armed robbery and defendant was not exposed to greater danger than that inherent in the armed robbery.\nAppeal by defendant from judgments entered 31 October 1997 by Judge Coy E. Brewer, Jr. in Cumberland County Superior Court. Heard in the Court of Appeals 11 January 1999.\nAttorney General Michael F Easley, by Associate Attorney General Bur\u00e9n R. Shields, III, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant." }, "file_name": "0310-01", "first_page_order": 340, "last_page_order": 345 }