{ "id": 11091796, "name": "STATE OF NORTH CAROLINA v. JEFFREY DOUGLAS LANCASTER", "name_abbreviation": "State v. Lancaster", "decision_date": "2000-03-21", "docket_number": "No. COA99-190", "first_page": "37", "last_page": "50", "citations": [ { "type": "official", "cite": "137 N.C. App. 37" } ], "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": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "opinion_index": -1, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "347 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "739", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "318 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732922 ], "year": 1986, "pin_cites": [ { "page": "68", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0054-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "248" } ], "opinion_index": 0 }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "688" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "495 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "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": "477 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867553, 867685, 867592, 867638, 867704 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0636-04", "/nc/344/0636-03", "/nc/344/0636-02", "/nc/344/0636-01", "/nc/344/0636-05" ] }, { "cite": "473 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "123 N.C. 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App. 199", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358107 ], "year": 1987, "pin_cites": [ { "page": "202" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0199-01" ] }, { "cite": "232 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559365, 8559344, 8559377, 8559352, 8559389 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0715-03", "/nc/291/0715-01", "/nc/291/0715-04", "/nc/291/0715-02", "/nc/291/0715-05" ] }, { "cite": "230 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 556", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550967 ], "year": 1976, "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/nc-app/31/0556-01" ] }, { "cite": "356 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "363", "parenthetical": "quoting 75 C.J.S. Rape \u00a7 4" } ], "opinion_index": 0 }, { "cite": "319 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741061 ], "year": 1987, "pin_cites": [ { "page": "659", "parenthetical": "quoting 75 C.J.S. 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JEFFREY DOUGLAS LANCASTER" ], "opinions": [ { "text": "WALKER, Judge.\nDefendant was convicted of first degree rape, second degree kidnapping, attempted first degree rape, and robbery with a dangerous weapon and was sentenced to a minimum of 439 months and a maximum of 560 months in prison. The defendant moved for a change of venue and to dismiss one of the rape charges, both of which the trial court denied.\nThe State\u2019s evidence tended to show the following: At approximately 1:00 a.m. on 29 May 1997, R.R. (\u201cthe victim\u201d) was working as the desk clerk at the Comfort Inn in Havelock, North Carolina. The victim testified that the defendant entered the building and inquired about room rates. The defendant said he would check the rates across the street at another hotel and left. The victim testified that defendant did not appear intoxicated or in any way impaired. When he returned, the defendant jumped over the counter and pulled out a box cutter. He then grabbed the victim and said: \u201cDon\u2019t scream or I\u2019ll kill you.\u201d He dragged her approximately 15 feet into a small storage closet. Defendant used wire ties to bind the victim\u2019s hands behind her back. He left the victim in the storage closet and returned to the front office, where he took approximately $300.00 from the cash register.\nDefendant returned to the closet and bound the victim\u2019s ankles with wire ties. Defendant pulled down the victim\u2019s pants and underpants and ordered her to spread her legs. Defendant then penetrated the victim from behind. The victim testified she felt defendant\u2019s penis inside her vagina and that he then became frustrated and agitated. Defendant then picked up the victim and threw her onto a shelf so that she was facing him. He then ripped the victim\u2019s shirt and bra off. Defendant ordered the victim to spread her legs and he forcibly penetrated her vagina with his penis a second time. Defendant withdrew his penis and masturbated, ejaculating on the victim\u2019s clothing. Defendant then pulled up the victim\u2019s pants and taped her mouth with masking tape before leaving.\nAfter the victim called the police, she was transported to the emergency room at the Craven Regional Medical Center and examined by Dr. Mark Anthony Willi. Dr. Willi testified that his examination of the victim\u2019s vagina yielded the presence of a discharge he thought was semen.\nOn 30 May 1997, defendant\u2019s brother, Jimmy Lancaster, assisted Trooper Gregory Steffens of the Highway Patrol in searching for the defendant. After locating the defendant inside his vehicle, Trooper Steffens blocked the defendant\u2019s vehicle in a parking lot and the defendant subsequently fled on foot. Trooper Steffens apprehended the defendant and subdued him with pepper spray.\nThe defendant testified that he is a crack cocaine addict and that prior to the attack, he purchased and smoked crack cocaine in Maysville, North Carolina, until he ran out of money. Defendant then drove to Havelock to rob someone for money to purchase more crack cocaine. Defendant testified that he entered the Comfort Inn, asked the victim for the money and took her to the closet but that he did not drag or force her there. He admitted taking the money out of the cash register and returning to the closet where the victim was located. Further, he undressed the victim but he could not obtain an erection and there was no intercourse between him and the victim.\nDefendant also testified that after he left the Comfort Inn, the defendant returned to Maysville but did not find anyone at the original crack house. He drove towards New Bern, North Carolina, and found another crack house where he purchased and smoked more crack cocaine. Defendant then returned to Havelock and drove past the Comfort Inn two times to observe any developments. Defendant then drove to \u201cSlope,\u201d North Carolina, purchased and smoked more crack cocaine, and finally returned home sometime after 5:00 a.m. Upon returning home, defendant told his mother, \u201cMama, I did something I shouldn\u2019t have done last night. I robbed somebody.\u201d\nOther witnesses testified to the defendant\u2019s drug addiction and mental treatment problems. Bob Mashburn, defendant\u2019s sponsor in the high risk cocaine group at the Neuse Mental Health Center in Morehead City, North Carolina, testified about defendant\u2019s cocaine addiction. Susan Eatmon, defendant\u2019s employer, also testified to his drug problems. Ron Bancroft, defendant\u2019s counselor at the Neuse Mental Health Center, testified about defendant\u2019s drug problems and depression. Bancroft further stated that defendant\u2019s \u201chigh\u201d would have been over at the time of the robbery and rape; however, his cocaine addiction could have a negative impact on his ability to think through the consequences of his action.\nI.\nDefendant first assigns as error the trial court\u2019s denial of his motion to change venue, arguing that pre-trial publicity in Craven County prejudiced him so that he could not obtain a fair and impartial trial. Specifically, defendant cites three newspaper articles published in the Sun Journal, the only daily newspaper published in Craven County, along with similar stories appearing on local radio and television stations.\nAfter a hearing on defendant\u2019s motion, the trial court\u2019s order denying the motion stated in part:\n4. From May 29, 1997, the date of the offense, to the date of the hearing of this motion, September 21, 1998, there have been three newspaper articles published in The Sun Journal. Two of those articles were printed back in May, 1997, the time of the commission of these offenses, and the third was published in August, 1998.\n5. The news accounts of these offenses and the subsequent arrest of the defendant were not excessive in number or in length.\n6. That all three articles were factual and non-inflammatory news accounts of the rape, robbery, and kidnapping and the subsequent arrest of the defendant.\n7. That the defense in jury voir dire will be able to determine whether jurors have knowledge of the case and, if so, whether they can set aside what they have previously heard or read about this case, and decide this case based on the evidence and testimony offered during the trial.\n8. That the defendant has not shown that it is reasonably likely that prospective jurors would base their decisions in this case upon pretrial information from either the print or television media or from word of mouth.\n9. That the defendant can receive in Craven County a fair and impartial trial.\nA motion for a change of venue is addressed to the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. State v. Pendergrass, 111 N.C. App. 310, 316, 432 S.E.2d 403, 407 (1993). In order to obtain a change of venue, a defendant must establish that it is reasonably likely that prospective jurors would base their decision upon pre-trial information rather than evidence presented at trial and would be unable to remove any preconceived impressions they might have formed. State v. Jerrett, 309 N.C. 239, 307 S.E.2d 339 (1983). Factual news accounts regarding the commission of a crime and the pre-trial proceedings do not of themselves warrant a change of venue. State v. Madric, 328 N.C. 223, 400 S.E.2d 31 (1991). If factual news articles are non-inflammatory and contain information that for the most part could be offered at defendant\u2019s trial, a motion for change of venue is properly denied. State v. Watson, 310 N.C. 384, 312 S.E.2d 448 (1984).\nOf the three newspaper articles defendant submitted in support of his motion, two were published at the time of the robbery, which was nearly 16 months prior to the hearing on defendant\u2019s motion to change venue. The third article, published a month before the venue hearing, relates to the defendant being attacked while awaiting trial in jail and only briefly mentions the circumstances surrounding the defendant\u2019s impending trial. Defendant has failed to meet his burden to show that he could not receive a fair trial in Craven County and the trial court did not err in denying his motion to change venue.\nII.\nThe defendant next argues that the trial court erred in denying his motion to dismiss one of the two rape charges submitted to the jury. Specifically, if an act of rape occurred, there was only one single continuous act and not two separate acts.\n\u201cGenerally rape is not a continuous offense, but each act of intercourse constitutes a distinct and separate offense.\u201d State v. Dudley, 319 N.C. 656, 659, 356 S.E.2d 361, 363 (1987) (quoting 75 C.J.S. Rape \u00a7 4); State v. Small, 31 N.C. App. 556, 559, 230 S.E.2d 425, 427 (1976), disc. review denied, 291 N.C. 715, 232 S.E.2d 207 (1977). Each act of forcible vaginal penetration constitutes a separate rape. State v. Midyette, 87 N.C. App. 199, 202, 360 S.E.2d 507, 509 (1987), aff\u2019d, 322 N.C. 108, 366 S.E.2d 440 (1988). \u201cEvidence of the slightest penetration of the female sex organ by the male sex organ is sufficient for vaginal intercourse and the emission of semen need not be shown to prove the offense of rape.\u201d State v. Williams, 314 N.C. 337, 351, 333 S.E.2d 708, 718 (1985); State v. Brown, 312 N.C. 237, 321 S.E.2d 856 (1984); State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968); State v. Monds, 130 N.C. 697, 41 S.E. 789 (1902).\nThe victim testified that she was penetrated from behind by the defendant. Then, he forced her onto a shelf in the closet so that she was facing him, and he again forcibly penetrated her a second time. Thus, there was sufficient evidence of two separate acts of rape and the trial court did not err in denying defendant\u2019s motion to dismiss one of the rape charges.\nIII.\nNext, defendant argues that the trial court erred in refusing to instruct the jury on the lesser-included offense of false imprisonment with regard to the kidnapping charge.\nPursuant to N.C. Gen. Stat. \u00a7 14-39(a) (1999), kidnapping is an unlawful, nonconsensual confinement, restraint or removal from one place to another for the purpose of committing specified acts. The State need only prove that defendant intended to commit one of the specified acts in order to sustain its burden of proof as to that element of the crime. State v. Surrett, 109 N.C. App. 344, 348-49, 427 S.E.2d 124, 126 (1993). Here, the defendant was charged with kidnapping the victim, for the purpose of facilitating the commission of a felony. See N.C. Gen. Stat. \u00a7 14-39(a)(2).\nWhere there is no evidence from which the jury could find that the crime of lesser degree was committed, the trial court need not instruct on a lesser-included offense. Surrett, 109 N.C. App. at 351, 427 S.E.2d at 128. The difference between kidnapping and the lesser-included offense of false imprisonment is the purpose of the confinement, restraint, or removal of another person. State v. Claypoole, 118 N.C. App. 714, 717-18, 457 S.E.2d 322, 324 (1995). If the purpose of the restraint was to accomplish one of the purposes enumerated in N.C. Gen. Stat. \u00a7 14-39, then the offense is kidnapping. Id. However, if the unlawful restraint occurs without any of the purposes specified in the statute, the offense is false imprisonment. State v. Pigott, 331 N.C. 199, 210, 415 S.E.2d 555, 562 (1992). Since the evidence shows that defendant confined, restrained, or removed the victim in order to commit a robbery and there was no evidence indicating that defendant acted for any other purpose, the trial court did not err in failing to instruct on the lesser-included offense. See Surrett, 109 N.C. App. at 352, 427 S.E.2d at 128.\nIV.\nDefendant\u2019s next two assignments of error concern the trial court\u2019s denial of his requests for jury instructions on diminished capacity and voluntary intoxication. We discuss each in turn.\nDefendant argues that the evidence of defendant\u2019s history of drug addiction, as testified to by his drug counselors and employer, along with evidence of defendant\u2019s mental condition on the night of the robbery, constituted sufficient evidence such that a jury instruction on diminished capacity was warranted.\nAn instruction on diminished capacity is warranted where the evidence of defendant\u2019s mental condition is sufficient to cause a reasonable doubt in the mind of a rational trier-of-fact as to whether the defendant had the ability to form the necessary specific intent to commit the crimes for which he is charged. State v. Clark, 324 N.C. 146, 163, 377 S.E.2d 54, 64 (1989).\nMr. Bancroft was certified as an expert in the fields of substance abuse addictions and cognizant behaviors. He testified that defendant could have been impaired at the time of the robbery, but that \u201cthe euphoric high would have probably been over.\u201d Additionally, Bancroft testified that such an impairment \u201ccould have had a negative impact\u201d upon the defendant\u2019s ability to form a plan or course of conduct. In a voir dire examination of Bancroft, he stated that he could not testify about the defendant\u2019s ability to think, make judgments, and distinguish right from wrong at the time these acts occurred. Bancroft\u2019s testimony only referred to the effect cocaine could have had on the defendant, based on his experience of how cocaine affects people in general.\nDefendant testified that he smoked crack and drank three or four beers over the course of the night. After looking around the Comfort Inn, defendant returned with a box cutter and wire ties to bind the victim. Defendant asked the victim for the keys to lock the front door. After raping the victim twice, defendant taped her mouth shut and left her in a closet before leaving the scene. Defendant drove through parts of eastern North Carolina in search of crack cocaine before committing the robbery and twice drove past the Comfort Inn after the robbery to see what developments had occurred. Furthermore, the victim testified that defendant did not appear intoxicated or in any way impaired during the ordeal.\nViewed in the light most favorable to the defendant, there was insufficient evidence of defendant\u2019s mental condition to create a reasonable doubt in the jurors\u2019 minds that defendant was unable to form the specific intent necessary to commit these crimes; therefore, the trial court did not err in denying a request for jury instructions on diminished capacity.\nTo be entitled to oan instruction on voluntary intoxication, a defendant must produce substantial evidence which would support a conclusion by the judge that he was \u201cso completely intoxicated and overthrown to render him utterly incapable of forming [the intent required to commit the offense.]\u201d Clark, 324 N.C. at 161, 377 S.E.2d at 63; State v. Mash, 323 N.C. 339, 346, 372 S.E.2d 532, 536 (1988). \u201cIn the absence of evidence of intoxication to a degree precluding the ability to form a specific intent to [commit the offenses], the court is not required to charge the jury thereon.\u201d State v. Washington, 71 N.C. App. 767, 770, 323 S.E.2d 420, 423 (1984), cert. denied, 315 N.C. 396, 339 S.E.2d 412 (1986); State v. Gerald, 304 N.C. 511, 521, 284 S.E.2d 312, 319 (1981). Evidence of mere intoxication is not enough to meet defendant\u2019s burden of production. State v. McQueen, 324 N.C. 118, 141, 377 S.E.2d 38, 51 (1989).\nAgain, viewed in the light most favorable to the defendant, there was no substantial evidence that the defendant was utterly incapable of forming the requisite intent to commit these crimes and therefore defendant was not entitled to a voluntary intoxication jury instruction.\nV.\nDefendant next argues that the jury instruction on kidnapping was erroneous in that it was \u201cdisjunctively nonspecific and constituted plain error.\u201d The indictment charged defendant with kidnapping by \u201cunlawfully confining, restraining and removing her from one place to another without her consent.\u201d Defendant argues that since the indictment used the conjunctive \u201cand\u201d to describe the State\u2019s allegations, the trial court\u2019s use of the disjunctive \u201cor\u201d in the jury instruction on kidnapping was error because it did not accurately express the State\u2019s allegations.\nThe indictment for kidnapping stated in part:\nThe jurors for the State upon their oath present that . . . the defendant . . . unlawfully, willfully and feloniously did kidnap [the victim], who had attained the age of 16 years, by unlawfully confining, restraining, and removing her from one place to another ... for the purpose of facilitating the commission of a felony.\n(Emphasis added). The trial court instructed the jury in part that:\n[I]f you find from the evidence beyond a reasonable doubt that..., the defendant unlawfully confined a person, restrained a person, or removed a person from one pl\u00e1ce to another, and that the person did not consent to this confinement, restraint or removal and that this was done for the purpose of facilitating the defendant\u2019s commission of armed robbery or common law robbery, and that this confinement, restraint or removal was a separate complete act independent of and apart from the armed robbery or common law robbery, it would be your duty to return a verdict of guilty of second-degree kidnapping.\n(Emphasis added).\nIf the defendant fails to object to a jury instruction, that instruction is reviewable on a plain error standard on appeal. State v. Raynor, 128 N.C. App. 244, 247, 495 S.E.2d 176, 178 (1998). The plain error standard requires a defendant to make a showing that absent the erroneous instruction, a jury would not have found him guilty of the offense charged. Id. To rise to the level of plain error, the error in the instructions must be \u201cso fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him.\u201d State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993).\nOur Supreme Court has held that a jury instruction on a theory of kidnapping different than the theory charged in the indictment was reversible error. See State v. Tucker, 317 N.C. 532, 346 S.E.2d 417 (1986). In Tucker, the defendant did not object to the jury instruction and argued plain error on appeal. The indictment charged the defendant with kidnapping by \u201cunlawfully removing [the victim] from one place to another.\u201d Id. at 537, 346 S.E.2d at 420. The jury instruction allowed a conviction for kidnapping if the jury found that defendant unlawfully \u201crestrained\u201d the victim. Id. The Tucker court stated that \u201cit is error, generally prejudicial, for the trial judge to permit a jury to convict upon some abstract theory not supported by the bill of indictment.\u201d Tucker, 317 N.C. at 537-38, 346 S.E.2d at 420 (quoting State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980)). The Tucker court went on to find the error reversible under a plain error standard, holding that \u201c[i]n light of the highly conflicting evidence in the instant kidnapping case on the unlawful removal and restraint issues, we think the instructional error might have ... \u201c \u2018tilted the scales\u201d and caused the jury to reach its verdict convicting the defendant.\u2019 \u201d Id. at 540, 346 S.E.2d at 422 (citations omitted).\nRecently, in State v. Dominie, 134 N.C. App. 445, 448, 518 S.E.2d 32, 35 (1999), this Court, following the mandate of Tucker, held that an indictment limiting the kidnapping charge to \u201cremoving\u201d the victim, followed by a \u201cconfining, restraining, or removing\u201d jury instruction, constituted reversible error under a plain error standard.\nWe find Tucker and Dominie distinguishable. In both cases, the indictment limited the alleged kidnapping to one theory: \u201cremoving\u201d the victim from one place to another. However, the jury instructions in each case allowed for a conviction of kidnapping based on a different theory than the one set out in the indictment. Additionally, the Tucker court found the error reversible based on the conflicting evidence on the removal and restraint issues.\nHere, the indictment charged defendant with kidnapping by \u201cconfining, restraining, and removing\u201d the victim. The jury instruction allowed a conviction upon a showing of either confining, restraining, or removing, which is not an \u201cabstract theory not supported by the bill of indictment.\u201d See Tucker, 317 N.C. at 537-38, 346 S.E.2d at 420.\nThe evidence showed that the defendant bound the victim\u2019s hands behind her back with wire ties. Then, he dragged her approximately 15 feet and forced her into a storage closet. He left the victim in the closet and returned to the front office to empty the cash register. Upon returning to the closet, the defendant bound the victim\u2019s ankles with wire ties. The defendant then moved the victim to the corner of the closet and raped her twice. There was substantial evidence to support any of the three methods set out in the indictment.\nDefendant argues that by asserting three theories in the indictment, the State has confined itself to proving that all three theories were used in order to convict the defendant. We disagree.\nA bill of indictment is sufficient if it charges the offense in a plain, intelligible manner, with averments sufficient to enable the court to proceed to judgment and to bar a subsequent prosecution for the same offense. State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972). The purpose of the indictment is to put the defendant on notice of the offense with which he is charged and to allow him to prepare a defense to that charge. State v. Sumner, 232 N.C. 386, 61 S.E.2d 84 (1950). The State need only prove that defendant intended to confine, restrain, or remove the victim in order to sustain its burden of proof as to that element of the crime. N.C. Gen. Stat. \u00a7 14-39 (1999); Surrett, 109 N.C. App. at 348-49, 427 S.E.2d at 126.\nSince an indictment need only allege one statutory theory, an indictment alleging all three theories is sufficient and puts the defendant on notice that the State intends to show that the defendant committed kidnapping in any one of the three theories. The jury instruction correctly allowed any one of the three theories to serve as the basis for a finding of kidnapping; therefore, the jury instruction accurately reflected the three permissible theories alleged in the indictment. Accordingly, the trial court did not err in its jury instruction on kidnapping.\nAdditionally, defendant argues that the kidnapping jury instruction erroneously stated the law in that it was \u201cambiguous as to whether the kidnapping was an inherent and an inevitable feature of armed robbery,\u201d and that this error also constitutes plain error.\nDefendant did not make an assignment of error in the record on this basis. Instead, defendant includes this argument under Assignment of Error Number 6, which states: \u201cThe jury instruction on kidnapping was erroneous in that it was disjunctively nonspecific, and it constituted plain error.\u201d\nThe scope of appellate review is limited to those issues presented by assignment of error set out in the record on appeal. N.C.R. App. R 10(a) (1999); Koufman v. Koufman, 330 N.C. 93, 408 S.E.2d 729 (1991). No assignment of error corresponds to the issue presented and thus the argument is not properly before this Court. However, pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure, at our discretion, we elect to address the merits of defendant\u2019s argument.\nDefendant correctly cites State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978) and its progeny for the principle that any restraint or removal which is also \u201can inherent and inevitable feature of\u2019 armed robbery cannot also be the basis for a conviction of second degree kidnapping, based on the constitutional prohibition against double jeopardy. See e.g. State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981); State v. Weaver, 123 N.C. App. 276, 473 S.E.2d 362, disc. review denied, 344 N.C. 636, 477 S.E.2d 53 (1996); State v. Beatty, 347 N.C. 555, 495 S.E.2d 367 (1998). Defendant argues that the trial court\u2019s charge is an incorrect statement of the law and was plain error.\nThe jury instructions on kidnapping given by the trial court, pursuant to N.C.P.I.-Crim. 210.35, stated that if the defendant\u2019s act of \u201cconfinement, restraint or removal was a separate complete act independent of and apart from the armed robbery or common law robbery,\u201d then a finding of kidnapping was warranted. Fulcher and its progeny establish that if the act committed by defendant is \u201can inherent, inevitable feature\u201d of the other felony (e.g. armed robbery), then a finding of kidnapping is constitutionally impermissible. Thus, N.C.P.I. \u2014 Crim. 210.35 is not in conflict with Fulcher and is a correct statement of the law.\nHere, the evidence established that defendant\u2019s binding of the victim\u2019s hands and feet, his dragging her 15 feet into a storage closet, and his moving her several times while in the closet, all were acts independent of and apart from the act of armed robbery. Accordingly, defendant\u2019s argument is without merit.\nVI.\nDefendant\u2019s two remaining assignments of error are based upon allegations of ineffective assistance of counsel. Defendant first contends that trial counsel\u2019s failure to submit into evidence the SBI lab report of defendant\u2019s DNA was error and prejudicial to his defense. Secondly, defendant argues that trial counsel erred by not submitting into evidence additional medical records regarding defendant\u2019s drug use and addiction.\n\u201cWhen a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel\u2019s conduct fell below an objective standard of reasonableness.\u201d Strickland v. Washington, 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693 (1984). In order to meet this burden, defendant must satisfy a two-part test:\nFirst, the defendant must show that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \u201ccounsel\u201d guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel\u2019s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.\nState v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). \u201cIneffective assistance of counsel claims are \u2018not intended to promote judicial second-guessing on questions of strategy as basic as the handling of a witness.\u2019 \u201d State v. Lowery, 318 N.C. 54, 68, 347 S.E.2d 729, 739 (1986) (citations omitted).\nOur review of the record reveals that both decisions made by trial counsel were strategic decisions and that neither approach the levels required by Braswell. Defendant is unable to establish that either decision deprived defendant of a fair trial and thus defendant\u2019s contentions are without merit.\nIn sum, the defendant received a fair trial free of prejudicial error.\nNo error.\nChief Judge EAGLES and Judge WYNN concur.", "type": "majority", "author": "WALKER, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Robert T. Hargett, for the State.", "McGotter, McAfee & Ashton, PLLC, by Rudolph A. Ashton, III, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JEFFREY DOUGLAS LANCASTER\nNo. COA99-190\n(Filed 21 March 2000)\n1. Venue\u2014 change \u2014 publicity\nThe trial court did not err in a prosecution for robbery and other crimes by denying defendant\u2019s motion for a change of venue due to pretrial publicity. Of the three newspaper articles defendant submitted in support of his motion, two were published at the time of the robbery, nearly 16 months before the hearing on the motion to change venue, and the third related to defendant being attacked in jail and only briefly mentioned the circumstances surrounding his impending trial.\n2. Rape\u2014 continuous act \u2014 multiple penetrations\nThe trial court did not err by denying a motion to dismiss one of two rape charges on the theory that there was only one continuous act. Each act of intercourse constitutes a distinct and separate offense and the victim testified that she was penetrated from behind by defendant, that he forced her onto a closet shelf so that she was facing him, and that he again forcibly penetrated her.\n3. Kidnapping\u2014 instructions \u2014 false imprisonment as lesser included offense\nThe trial court did not err in a second-degree kidnapping prosecution by not instructing the jury on the lesser-included offense of false imprisonment where the evidence shows that defendant confined, restrained, or removed the victim in order to commit a robbery and there was no evidence that defendant acted for any other purpose.\n4. Criminal Law\u2014 diminished capacity \u2014 sufficiency of the evidence\nThe trial court did not err in a prosecution for rape and kid-naping by denying defendant\u2019s request for an instruction on diminished capacity and voluntary intoxication where there was insufficient evidence that defendant was unable to form the requisite intent.\n5. Kidnapping\u2014 indictment and instruction \u2014 use of conjunctive and disjunctive\nThe trial court did not err in its instructions on kidnapping where the indictment charged defendant with kidnapping by confining, restraining, and removing, and the instruction allowed a conviction upon a showing of either confining, restraining, or removing. There was substantial evidence to support any of the three methods set out in the indictment and an indictment alleging all three theories is sufficient and puts defendant on notice that the State intends to show that defendant committed kidnapping in any one of the three theories.\n6. Kidnapping\u2014 instructions \u2014 restraint and removal separate from armed robbery\nThe trial court\u2019s instructions in a kidnapping and armed robbery prosecution were not erroneous where defendant contended that the instruction was ambiguous as to whether the kidnapping was an inherent and inevitable feature of armed robbery, but the court gave the pattern jury instruction that a finding of kidnapping was warranted if defendant\u2019s act of confinement, restraint, or removal was a separate complete act independent of and apart from armed robbery or common law robbery, and the evidence established that defendant\u2019s binding of the victim\u2019s hands and feet, dragging her 15 feet into a storage closet, and moving her several times while in the closet were acts independent of and apart from the robbery.\n7. Constitutional Law\u2014 effective assistance of counsel\u2014 items not introduced\nA kidnapping, rape, and robbery defendant did not have ineffective assistance of counsel where defendant\u2019s counsel did not introduce an SBI lab report of defendant\u2019s DNA and did not submit medical records regarding defendant\u2019s drug use and addiction. Both decisions were strategic and neither approach the levels required by State v. Boswell, 312 N.C. 553.\nAppeal by defendant from judgments entered 2 October 1998 by Judge Charles H. Henry in Craven County Superior Court. Heard in the Court of Appeals 10 January 2000.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Robert T. Hargett, for the State.\nMcGotter, McAfee & Ashton, PLLC, by Rudolph A. Ashton, III, for defendant-appellant." }, "file_name": "0037-01", "first_page_order": 69, "last_page_order": 82 }