{ "id": 8351976, "name": "STATE OF NORTH CAROLINA v. ANTWAN LATRELL STEPHENS, Defendant", "name_abbreviation": "State v. Stephens", "decision_date": "2006-01-03", "docket_number": "No. COA05-502", "first_page": "328", "last_page": "338", "citations": [ { "type": "official", "cite": "175 N.C. App. 328" } ], "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": "616 S.E.2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633458 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "18", "parenthetical": "quoting State v. Taylor, 354 N.C. 28, 33-34, 550 S.E.2d 141, 146 (2001)" }, { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0015-01" ] }, { "cite": "550 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "146" } ], "opinion_index": 0 }, { "cite": "354 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138382 ], "year": 2001, "pin_cites": [ { "page": "33-34" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0028-01" ] }, { "cite": "172 N.C. App. 308", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8319854 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "311-12", "parenthetical": "quoting State v. Taylor, 354 N.C. 28, 33-34, 550 S.E.2d 141, 146 (2001)" }, { "page": "311-12" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0308-01" ] }, { "cite": "552 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2001, "pin_cites": [ { "page": "238" }, { "page": "296" }, { "page": "238" }, { "page": "238" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 292", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11356509 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "295-96" }, { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0292-01" ] }, { "cite": "282 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "446" } ], "opinion_index": 0 }, { "cite": "304 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565336 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "103" }, { "page": "103" }, { "page": "103" }, { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0093-01" ] }, { "cite": "415 S.E.2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1992, "pin_cites": [ { "page": "561", "parenthetical": "quoting State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981)" }, { "page": "561" }, { "parenthetical": "citation omitted" }, { "page": "561" } ], "opinion_index": 0 }, { "cite": "331 N.C. 199", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497633 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "210", "parenthetical": "quoting State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981)" }, { "page": "210" }, { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0199-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-39", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2004, "pin_cites": [ { "page": "(a)(2)" } ], "opinion_index": 0 }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "313 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "587", "parenthetical": "citing State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980)" } ], "opinion_index": 0 }, { "cite": "310 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395265 ], "year": 1984, "pin_cites": [ { "page": "566", "parenthetical": "citing State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0563-01" ] }, { "cite": "305 S.E.2d 718", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "720" } ], "opinion_index": 0 }, { "cite": "309 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760004 ], "year": 1983, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0176-01" ] }, { "cite": "163 L. Ed. 2d 79", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 2005, "opinion_index": 0 }, { "cite": "93 L. Ed. 2d 166", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "479 U.S. 871", "category": "reporters:federal", "reporter": "U.S.", "year": 1986, "opinion_index": 0 }, { "cite": "340 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "693" } ], "opinion_index": 0 }, { "cite": "315 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720550 ], "year": 1986, "pin_cites": [ { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0398-01" ] }, { "cite": "604 S.E.2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "904", "parenthetical": "citing State v. Gladden, 315 N.C. 398, 430, 340 S.E.2d 673, 693, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166 (1986)" } ], "opinion_index": 0 }, { "cite": "359 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3803286 ], "year": 2004, "pin_cites": [ { "page": "161", "parenthetical": "citing State v. Gladden, 315 N.C. 398, 430, 340 S.E.2d 673, 693, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0131-01" ] }, { "cite": "407 S.E.2d 543", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 501", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556711, 2556905, 2552880, 2554750, 2553663 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0501-03", "/nc/329/0501-04", "/nc/329/0501-02", "/nc/329/0501-01", "/nc/329/0501-05" ] }, { "cite": "401 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 93", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522322 ], "year": 1991, "pin_cites": [ { "page": "95-96" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0093-01" ] }, { "cite": "168 S.E.2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "43" } ], "opinion_index": 0 }, { "cite": "275 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558758 ], "year": 1969, "pin_cites": [ { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0342-01" ] }, { "cite": "337 S.E.2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "75" }, { "page": "75" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 29", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519419 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "36" }, { "page": "36" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0029-01" ] }, { "cite": "232 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "438" }, { "page": "438-39" } ], "opinion_index": 0 }, { "cite": "292 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567601 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "138" }, { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0132-01" ] }, { "cite": "478 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "784", "parenthetical": "citing State v. Tilley, 292 N.C. 132, 138, 232 S.E.2d 433, 438 (1977)" } ], "opinion_index": 0 }, { "cite": "345 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53863 ], "year": 1996, "pin_cites": [ { "page": "141", "parenthetical": "citing State v. Tilley, 292 N.C. 132, 138, 232 S.E.2d 433, 438 (1977)" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0137-01" ] }, { "cite": "505 S.E.2d 153", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "158" }, { "page": "158" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 11", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11196773 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "20" }, { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0011-01" ] }, { "cite": "243 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "351" }, { "page": "351" } ], "opinion_index": 0 }, { "cite": "294 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574036 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "523" }, { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0503-01" ] } ], "analysis": { "cardinality": 951, "char_count": 24042, "ocr_confidence": 0.75, "pagerank": { "raw": 4.3849617572011903e-08, "percentile": 0.275363158238183 }, "sha256": "e0de09ea2731866ff427aee3f4adcf44321d7c59ba1b634deec636369a17ea54", "simhash": "1:0f69f42ef0fa3d5e", "word_count": 4103 }, "last_updated": "2023-07-14T22:29:36.119960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and SMITH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ANTWAN LATRELL STEPHENS, Defendant" ], "opinions": [ { "text": "WYNN, Judge.\nIn general, a \u201cstatement is admissible as an exception to the hearsay rule if it is ... a statement by a coconspirator of such party during the course and in furtherance of the conspiracy.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(d) (2004). Defendant argues that the statements in this case were made prior to the formation of the conspiracy and thus, do not fit in this exception. Although we agree that the hearsay statements allowed in this case were made prior to the formation of the conspiracy, we uphold Defendant\u2019s conviction for armed robbery because the error was harmless.\nRegarding a second issue in this appeal, we note that restraint which is an inherent, inevitable feature of armed robbery may not be used to convict a defendant of kidnapping. See State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978); State v. Allred, 131 N.C. App. 11, 20, 505 S.E.2d 153, 158 (1998). In this case, Defendant contends that his second-degree kidnapping conviction must be set aside because the only restraint used was that necessary to complete the armed robbery. In light of Fulcher and Allred, we must agree that the facts of this case require the vacation of Defendant\u2019s conviction for second-degree kidnapping.\nAt trial, the State\u2019s evidence tended to show that on the evening of 21 March 2004, Defendant Antwan Latrell Stephens was waiting iri a car outside the Budget Inn, located in Clinton, North Carolina. Defendant\u2019s friend, Dennis Smith, was in room eleven of the Budget Inn with Lakeshia Cooper. During that time, Mr. Smith received a phone call from Michael Loftin stating, \u201cI\u2019m going to make me a lick\u201d and asking, \u201cWhere Antwan at?\u201d Mr. Smith testified that \u201cto make a lick\u201d is slang for committing a robbery. Mr. Smith took the phone outside and gave it to Defendant. After talking with Mr. Loftin, Defendant asked Mr. Smith for a ride to Cliff\u2019s Fast Stop. During the ride, Defendant repeatedly stated that \u201cwe are going to make a mother f \u2014 king lick, son.\u201d Defendant asked Mr. Smith if he could come back to the room after the lick [robbery] and Mr. Smith said yes. At approximately 8:00 p.m., Defendant met Mr. Loftin at Cliff\u2019s Fast Stop and arranged to meet each other at the Budget Inn later that evening.\nAt approximately 2:40 a.m. on the morning of 22 March 2004, Melissa Licona was working at the Pep Mart in Clinton. Ms. Licona testified that she was cleaning the hot dog machine and turned when she heard the door open. Thereafter, Ms. Licona observed a male, wearing a camouflage jacket and a bandanna around his nose and mouth, with a shotgun six to eight inches from her face. The man said \u201cBitch, give me the money,\u201d and struck her in the back with the shotgun. The man in camouflage began pushing Ms. Licona toward the register. Another man wearing a two-tone gray and blue shirt and a black toboggan over his head and face, with home made eye holes cut into it, came into the store and asked, \u201cWhere the hundreds at? Where the hundreds?\u201d The man in camouflage beat on the cash register until it opened. The man wearing the black toboggan took out a white plastic bag and dumped the contents of the cash drawer into the bag\u2014 $420.27 in cash (including a roll of quarters) and American flag U.S. Postage Stamps. The two men left and Ms. Licona called the police.\nThe entrance to the Budget Inn is approximately 714 feet from the entrance to the Pep Mart. Mr. Smith testified that Defendant and Mr. Loftin later returned to room eleven of the Budget Inn out of breath like they had been running. Mr. Loftin wore a camouflage jacket, had a bandanna over his shoulder, and carried a sawed-off shotgun. Defendant wore a gray and blue shirt. Mr. Smith testified that Mr. Loftin said \u201cMan, we just licked the mother f \u2014 king store.\u201d And Defendant said \u201cMan, you should have seen that sh-t. That sh-t was crazy as hell.\u201d Defendant then began pulling money out of a black toboggan with eye holes cut into it and out of a clear white plastic bag.\nMeanwhile, Officers Robbie King, Hank Smith, John Bass, and Detective Sergeant David Turner of the Clinton Police Department responded to Ms. Licona\u2019s 911 call. While searching the area around the store for suspects, Officer Smith observed someone peeking out from behind a curtain covering the window in room eleven of the Budget Inn. When it appeared that the occupant of the room saw the officer, the curtain was abruptly shut. Detective Turner and Officers Smith and King knocked on the door of room eleven. Mr. Smith confirmed that he rented the room and consented to a search of the room. The officers entered the room and found Defendant, Ms. Cooper, and Mr. Smith in the room near the bed; Mr. Loftin in the bathroom with a sawed-off shotgun beside him on the floor; a camouflage jacket; a camouflage bandana; a Stevens 20 gauge pump sawed-off shotgun; a blue and gray long-sleeved sweatshirt; a black toboggan with holes cut in it; $140.00 cash (including a roll of quarters) in the bathroom; and $149.00 cash next to a white plastic trash bag.\nThe State also presented testimony from Tasha Stamps who stated that she saw Defendant wearing a blue and gray shirt and that Defendant admitted to her that he and Mr. Loftin robbed the Pep Mart.\nDefendant presented several witnesses in his defense including Mr. Loftin who testified that when he went to the Budget Inn, Mr. Smith retrieved a sawed-off shotgun from his car. He stated that he wore a blue and gray shirt and black toboggan and Mr. Smith wore a camouflage jacket and bandanna. The two went to Pep Mart and committed the armed robbery. Following the robbery, Mr. Loftin and Mr. Smith went back to the Budget Inn and sorted out the money in the bathroom. Mr. Loftin testified that at that time Ms. Cooper was lying on the bed smoking marijuana and Defendant was asleep on the floor.\nThe trial court also heard voir dire testimony of Christopher Parker, an inmate at the Sampson County Detention Facility, who testified that on the evening after Tasha Stamps testified at the trial, she came to the county jail and yelled to Defendant through the window. Although Mr. Parker did not see Ms. Stamps, he recognized her voice and overheard her statements to Defendant that the only reason she testified against Defendant was because of threats of prosecution by the district attorney. Defendant asked Ms. Stamps \u201cwhy did she tell a story on him for,\u201d and she told Defendant she was going to write to him to explain. Defense counsel argued that Mr. Parker\u2019s testimony should be admitted into evidence under Rule 804(b)(3) of the North Carolina Rules of Evidence as a statement against Ms. Stamps\u2019s pecuniary interest. The trial court did not allow the testimony as there was no showing that Ms. Stamps was unavailable and denied Defendant\u2019s motion for a continuance to locate Ms. Stamps.\nDefendant was indicted and found guilty of robbery with a dangerous weapon and second-degree kidnapping. The trial court sentenced Defendant to 103 to 133 months imprisonment for the robbery with a dangerous weapon charge and thirty-four to fifty months imprisonment for the second-degree kidnapping charge.\nOn appeal, Defendant argues that the trial court erred in (1) admitting hearsay statements into evidence; (2) denying his motion to dismiss the charge of second-degree kidnapping; and (3) denying his motion to continue the trial.\nWe first address Defendant\u2019s contention that the trial court erred by admitting a hearsay statement made by Defendant\u2019s co-conspirator, Mr. Loftin. Defendant argues that the statement was made before the conspiracy had been established and thus violated Rule 801(d)(E) of the North Carolina Rules of Evidence. While we agree with Defendant, we find this error was harmless.\n\u201c \u2018Hearsay\u2019 is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(c) (2004). \u201cA statement is admissible as an exception to the hearsay rule if it is offered against a party and it is . . . (E) a statement by a coconspirator of such party during the course and in furtherance of the conspiracy.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(d). In order for the statements or acts of a co-conspirator to be admissible, there must be a showing that (1) a conspiracy existed and (2) that the acts or declarations were made by a party to it and in pursuance of its objectives (3) while the conspiracy was active, that is, after it was formed and before it ended. State v. Williams, 345 N.C. 137, 141, 478 S.E.2d 782, 784 (1996) (citing State v. Tilley, 292 N.C. 132, 138, 232 S.E.2d 433, 438 (1977)). \u201cStatements made prior to or subsequent to the conspiracy are not admissible under this exception.\u201d State v. Gary, 78 N.C. App. 29, 36, 337 S.E.2d 70, 75 (1985).\nThe State must establish a prima facie case of conspiracy without relying on the declaration sought to be admitted. Id. However, \u201c \u2018[b]ecause of the nature of [conspiracy] courts have recognized the inherent difficulty in proving the formation and activities of the criminal plan and have allowed wide latitude in th\u00e9 order in which pertinent facts are offered in evidence.\u2019 \u201d Tilley, 292 N.C. at 139, 232 S.E.2d at 438-39 (quoting State v. Conrad, 275 N.C. 342, 347, 168 S.E.2d 39, 43 (1969)).\nAt trial, Dennis Smith testified for the State that on the night of the robbery he received a telephone call from Mr. Loftin, and the following conversation ensued:\nQ: What did Mr. Loftin say to you when you picked up your cell phone?\nA: He was like, \u201cMan, I just got robbed for five thousand dollars. Some Mexicans just robbed me.\u201d\nQ: And did he say anything after that?\nA: Yes, sir. He said, he was like, \u201cI\u2019m going to make me a lick.\u201d He was like, \u201cWhere Antwan at?\u201d I was like, \u201cHe\u2019s outside in my car.\u201d\nQ: Now he told you he was going to go make a lick. What does that mean, to make a lick?\nA: Rob somebody. Rob something.\nA conspiracy is an unlawful agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means, and may be shown by circumstantial evidence. State v. Cotton, 102 N.C. App. 93, 95-96, 401 S.E.2d 376, 378, cert. denied, 329 N.C. 501, 407 S.E.2d 543 (1991).\nWhile the independent evidence presented at trial tended to show that Mr. Loftin and Defendant conspired to rob the Pep Mart on 22 March 2004, there is no evidence that suggests that the conspiracy was in existence at the time Mr. Loftin made the statements to Mr. Smith. In fact, the evidence tends to show that the conspiracy began immediately after Mr. Loftin and Mr. Smith\u2019s conversation. Mr. Smith testified that, after speaking with Mr. Loftin, Defendant asked him for a ride to Cliff\u2019s Fast Stop and repeatedly stated that \u201cwe are going to make a mother f \u2014 king lick, son.\u201d Mr. Loftin testified that at approximately 8:00 p.m., he met Defendant at Cliff\u2019s and then arranged to meet later at the Budget Inn. This evidence shows at best that the conspiracy to rob Pep Mart began after Mr. Smith spoke with Mr. Loftin. Statements made prior to the conspiracy are not admissible under Rule 801(d)(E). Gary, 78 N.C. App. at 36, 337 S.E.2d at 75. Therefore, the trial court erred in allowing Mr. Smith to testify about the contents of his conversation with Mr. Loftin as the statements were hearsay and did not fit into the exception in Rule 801(d)(E) of the North Carolina Rules of Evidence.\nBut our inquiry must further determine whether the State has met the burden of showing that the trial court\u2019s erroneous admission of the hearsay statements was harmless beyond a reasonable doubt. N.C. Gen. Stat. \u00a7 15A-1443(b) (2004). Indeed, there is overwhelming evidence that Defendant participated in the armed robbery of Pep Mart, even excluding the statement made by Mr. Smith. Mr. Smith testified that Defendant: (1) repeatedly stated that \u201cwe are going to make a mother f \u2014 king lick, son[;]\u201d (2) returned to the Budget Inn with Mr. Loftin; (3) wore a gray and blue shirt; (4) responded to Mr. Loftin statement, \u201cMan, we just licked the mother f \u2014 king store[,]\u201d by stating, \u201cMan, you should have seen that sh-t. That sh-t was crazy as hell[;]\u201d (5) pulled money out of a black toboggan with eye holes cut into it and out of a clear white plastic bag. Ms. Licona testified that during the robbery of Pep Mart, one of the robbers wore a two-tone gray and blue shirt and a black toboggan over his head and face, with home made eye holes cut into it. Tasha Stamps testified that on the evening of 21 March 2004, she saw Defendant wearing a blue and gray shirt, and that after the robbery, Defendant told her that he and Mr. Loftin had robbed Pep Mart. Moreover, the State\u2019s evidence showed that Defendant was found in room eleven of Budget Inn with Mr. Loftin. The police found the following items in the room: a camouflage jacket, a camouflage bandana, a Stevens 20 gauge pump sawed-off shotgun, a blue and gray long-sleeved sweatshirt, a black toboggan with holes cut in it, $140.00 cash (including a roll of quarters) in the bathroom, $149.00 cash next to a white plastic trash bag.\nIn short, the State\u2019s evidence shows that the jury did not need to consider Mr. Smith\u2019s statement regarding his conversation with Mr. Loftin, as there is overwhelming evidence that Defendant committed the armed robbery. Accordingly, we hold the admission of the hearsay statement harmless error as it did not prejudice Defendant.\nWe next address Defendant\u2019s contention that the trial court erred in denying his motion to dismiss the charge of second-degree kidnapping as the State failed to produce sufficient evidence that there was restraint of the victim that was not necessary to the robbery.\nWhen reviewing a motion to dismiss, we view \u201cthe evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.\u201d State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004) (citing State v. Gladden, 315 N.C. 398, 430, 340 S.E.2d 673, 693, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166 (1986)), cert. denied, - U.S. -, 163 L. Ed. 2d 79 (2005). If we find that \u201csubstantial evidence exists to support each essential element of the crime charged and that defendant was the perpetrator, it is proper for the trial court to [have denied] the motion.\u201d Id. (citing State v. Malloy, 309 N.C. 176, 178, 305 S.E.2d 718, 720 (1983)). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984) (citing State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980)).\nA defendant is guilty of the offense of second-degree kidnapping if he (1) confines, restrains, or removes from one place to another (2) a person sixteen years of age or over (3) without the person\u2019s consent, (4) for the purpose of facilitating the commission of a felony. N.C. Gen. Stat. \u00a7 14-39(a)(2) (2004). \u201cOur Supreme Court, however, has recognized that \u2018certain felonies (e.g., forcible rape and armed robbery) cannot be committed without some restraint of the victim\u2019 and has held that restraint \u2018which is an inherent, inevitable feature of [the] other felony\u2019 may not be used to convict a defendant of kidnapping.\u201d Allred, 131 N.C. App. at 20, 505 S.E.2d at 158 (quoting Fulcher, 294 N.C. at 523, 243 S.E.2d at 351). \u201cThe key question ... is whether the kidnapping charge is supported by evidence from which a jury could reasonably find that the necessary restraint for kidnapping \u2018exposed [the victim] to greater danger than that inherent in the armed robbery itselff.]\u2019 \u201d State v. Pigott, 331 N.C. 199, 210, 415 S.E.2d 555, 561 (1992) (quoting State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981)).\nIn Irwin, our Supreme Court said the defendant\u2019s forcing the victim to move to the back of the store at knife point was \u201can inherent and integral part of the attempted armed robbery,\u201d because the journey was necessitated by the defendant\u2019s objective that the victim obtain drugs by going to the prescription counter at the back of the store and opening the safe. 304 N.C. at 103, 292 S.E.2d at 446. The court held the victim\u2019s removal was \u201ca mere technical asportation and insufficient to support conviction for a separate kidnapping offense.\u201d Id.\nIn State v. Muhammad, 146 N.C. App. 292, 295-96, 552 S.E.2d 236, 238 (2001), the defendant placed the victim in a choke hold, hit him in the side three times, wrestled with the victim on the floor, grabbed the victim again around the throat, pointed a gun at his head and marched him to the front of the store. This Court held that, \u201cthese actions constituted restraint beyond what was necessary for the commission of common law robbery[,]\u201d as the defendant \u201cdid substantially more than just force [the victim] to walk from one part of the restaurant to another.\u201d Id. at 296, 552 S.E.2d at 238.\nIn Pigott, the defendant threatened the victim with a gun, then bound the victim\u2019s hands and feet while searching the office and apartment for money. 331 N.C. at 210, 415 S.E.2d at 561. Our Supreme Court held \u201cthat all the restraint necessary and inherent to the armed robbery was exercised by threatening the victim with the gun. When defendant bound the victim\u2019s hands and feet, he \u2018exposed [the victim to a] greater danger than that inherent in the armed robbery itself.\u2019 \u201d Id. (citation omitted).\nHere, the facts are more aligned with the facts in Irwin than in Muhammad or Pigott. Defendant or his accomplice struck Ms. Licona in the back with the shotgun and then pushed her toward the register. Ms. Licona being pushed and walked to the cash register at gun point was \u201can inherent and integral part of the [] armed robbery.\u201d Irwin, 304 N.C. at 103, 292 S.E.2d at 446. Defendant did not do \u201csubstantially more\u201d than force Ms. Licona to the cash register. See Muhammad, 146 N.C. App. at 296, 552 S.E.2d at 238. Defendant\u2019s restraint of Ms. Licona did not expose her to a greater danger than that inherent in an armed robbery. Pigott, 331 N.C. at 210, 415 S.E.2d at 561. Ms. Licona\u2019s removal \u201cwas a mere technical asportation and insufficient to support conviction for a separate kidnapping offense.\u201d Irwin, 304 N.C. at 103, 292 S.E.2d at 446. Accordingly, Defendant\u2019s conviction for second-degree kidnapping must be vacated.\nFinally, Defendant argues that the trial court erred in denying his motion to continue. On the last day of the trial, the trial court heard voir dire testimony of Christopher Parker, an inmate at the Sampson County Detention Facility, who testified that he overheard a conversation between Tasha Stamps and Defendant in which she indicated that the only reason she testified against Defendant was because of threats of prosecution by the district attorney. The trial court denied defense counsel\u2019s motion for a continuance to locate Ms. Stamps. Defendant argues that the trial judge abused his discretion \u201cand violated [his] constitutional right to confront his accuser with witnesses and present a defense[.]\u201d We disagree.\nThe standard of review of a trial court\u2019s ruling on a motion for a continuance,\nis addressed to the discretion of the trial court, and absent a gross abuse of that discretion, the trial court\u2019s ruling is not subject to review. When a motion to continue raises a constitutional issue, the trial court\u2019s ruling is fully reviewable upon appeal. Even if the motion raises a constitutional issue, a denial of a motion to continue is grounds for a new trial only when defendant shows both that the denial was erroneous and that he suffered prejudice as a result of the error.\nState v. Jones, 172 N.C. App. 308, 311-12, 616 S.E.2d 15, 18 (2005) (quoting State v. Taylor, 354 N.C. 28, 33-34, 550 S.E.2d 141, 146 (2001)).\nDefendant contends that the trial court\u2019s denial of his motion to continue to locate Ms. Stamps violated his \u201cconstitutional right to confront his accuser... as guaranteed by the Sixth Amendment to the United States Constitution^]\u201d However, Ms. Stamps had previously testified at trial and defense counsel already cross-examined her. On recross-examination defense counsel questioned Ms. Stamps regarding her motive for giving information to the district attorney:\nQ: Okay; and then you voluntarily went to Mr. Weddle [assistant district attorney]?\nA: Yes, sir.\nQ: Why did you choose to go to him six months later?\nA: This is now when the trial is. I mean, this is now when the trial is. I just decided to do the right thing.\nQ: So you found out he was going to trial?\nA: Yes, sir.\nQ: And so then you went to the DA?\nA: Yes, sir.\nAs Defendant already had the opportunity to question Ms. Stamps regarding her motives for giving information to the district attorney and for testifying at trial, there is no constitutional issue involved in the trial court\u2019s denial of the motion to continue. Therefore, the trial court\u2019s decision is reviewed on an abuse of discretion standard. Jones, 172 N.C. App. at 311-12, 616 S.E.2d at 18. As the trial court\u2019s decision was not manifestly unsupported by reason, we find no gross abuse of discretion. Id. Accordingly, this assignment of error is overruled.\nDefendant failed to argue his remaining assignments of error; therefore, they are deemed abandoned. N.C. R. App. P. 28(b)(6).\nVacated in part; No prejudicial error in part.\nJudges STEELMAN and SMITH concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General John G. Evans, for the State.", "Lig\u00f3n and Hinton, by Lemuel W. Hinton, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANTWAN LATRELL STEPHENS, Defendant\nNo. COA05-502\n(Filed 3 January 2006)\n1. Evidence\u2014 hearsay \u2014 coconspirator\u2019s statement made before conspiracy established \u2014 harmless error\nAlthough the trial court erred in an armed robbery and second-degree kidnapping case by admitting into evidence a hearsay statement made by defendant\u2019s coconspirator that was made before the conspiracy had been established, the error was harmless because there was overwhelming evidence that defendant participated in the armed robbery of a convenience store even excluding the statement made by his coconspirator.\n2. Kidnapping\u2014 second-degree \u2014 motion to dismiss \u2014 sufficiency of evidence \u2014 restraint\nThe trial court erred by denying defendant\u2019s motion to dismiss the charge of second-degree kidnapping, because: (1) the pushing of the victim and her walking to the cash register at gunpoint was an inherent and integral part of an armed robbery; (2) defendant did not do substantially more than force the victim to the cash register; (3) defendant\u2019s restraint of the victim did not expose her to a greater danger than that inherent in armed robbery; and (4) the victim\u2019s removal was a mere technical asportation and insufficient to support conviction for a separate kidnapping offense.\n3. Criminal Law\u2014 motion to continue \u2014 location of witness\nThe trial court did not abuse its discretion in an armed robbery and second-degree kidnapping case by denying defendant\u2019s motion to continue in order to locate a witness to testily regarding her motives for giving information to the district attorney and for testifying at trial even after another inmate testified that he overheard a conversation between the witness and defendant in which she indicated the only reason she testified against defendant was based on threats of prosecution by the district attorney, because: (1) the witness had previously testified at trial, and defense counsel had already cross-examined her; and (2) on recross-examination defense counsel had already had the opportunity to question the witness regarding her motive for giving information to the district attorney.\n4. Appeal and Error\u2014 preservation of issues \u2014 failure to argue\nAssignments of error that defendant failed to argue in his brief are deemed abandoned under N.C. R. App. R 28(b)(6).\nAppeal by Defendant from judgment entered 10 December 2004 by Judge D. Jack Hooks in Superior Court, Sampson County. Heard in the Court of Appeals 29 November 2005.\nAttorney General Roy Cooper, by Assistant Attorney General John G. Evans, for the State.\nLig\u00f3n and Hinton, by Lemuel W. Hinton, for defendant-appellant." }, "file_name": "0328-01", "first_page_order": 362, "last_page_order": 372 }