{ "id": 4156655, "name": "STATE OF NORTH CAROLINA v. KARSHIA BLIAMY LY and JEFFREY XIONG", "name_abbreviation": "State v. Ly", "decision_date": "2008-04-01", "docket_number": "No. COA07-578", "first_page": "422", "last_page": "435", "citations": [ { "type": "official", "cite": "189 N.C. App. 422" } ], "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": "626 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635151 ], "year": 2006, "pin_cites": [ { "page": "286", "parenthetical": "quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0271-01" ] }, { "cite": "627 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635398 ], "year": 2006, "pin_cites": [ { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/se2d/627/0604-01" ] }, { "cite": "630 S.E.2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635856 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "242" }, { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/se2d/630/0234-01" ] }, { "cite": "645 S.E.2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638713 ], "weight": 5, "year": 2007, "pin_cites": [ { "page": "99" }, { "page": "97" }, { "page": "166" }, { "page": "99" }, { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/se2d/645/0093-01" ] }, { "cite": "335 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "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": "339 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "861" }, { "page": "861" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 635", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522605 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/79/0635-01" ] }, { "cite": "539 U.S. 510", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8898384 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "534" }, { "page": "493" }, { "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/539/0510-01" ] }, { "cite": "166 L. Ed. 2d 116", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 2006, "opinion_index": 0 }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "360 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787721 ], "year": 2006, "pin_cites": [ { "page": "316", "parenthetical": "quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0297-01" ] }, { "cite": "524 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "340" } ], "opinion_index": 0 }, { "cite": "351 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155594 ], "year": 2000, "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0192-01" ] }, { "cite": "461 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "739" } ], "opinion_index": 0 }, { "cite": "341 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793100 ], "year": 1995, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0553-01" ] }, { "cite": "133 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "651" } ], "opinion_index": 0 }, { "cite": "260 N.C. 753", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576315 ], "year": 1963, "pin_cites": [ { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0753-01" ] }, { "cite": "431 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "765" } ], "opinion_index": 0 }, { "cite": "334 N.C. 18", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531370 ], "year": 1993, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0018-01" ] }, { "cite": "247 S.E.2d 295", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "297" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 75", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551957 ], "year": 1978, "pin_cites": [ { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0075-01" ] }, { "cite": "360 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3786470 ], "year": 2006, "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0377-01" ] }, { "cite": "474 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "388", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "344 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867692 ], "year": 1996, "pin_cites": [ { "page": "222", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0198-01" ] }, { "cite": "443 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "74" } ], "opinion_index": 0 }, { "cite": "336 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535615 ], "year": 1994, "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0268-01" ] }, { "cite": "148 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1966, "pin_cites": [ { "page": "845" } ], "opinion_index": 0 }, { "cite": "267 N.C. 755", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560725 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0755-01" ] }, { "cite": "161 S.E.2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "21" } ], "opinion_index": 0 }, { "cite": "273 N.C. 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575927 ], "year": 1968, "pin_cites": [ { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0641-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-54", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "177 N.C. App. 614", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301914 ], "year": 2006, "pin_cites": [ { "page": "625" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0614-01" ] }, { "cite": "307 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "351" } ], "opinion_index": 0 }, { "cite": "309 N.C. 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761933 ], "year": 1983, "pin_cites": [ { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0239-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-39", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "415 S.E.2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "561" } ], "opinion_index": 0 }, { "cite": "331 N.C. 199", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497633 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0199-01" ] }, { "cite": "495 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "369", "parenthetical": "citation and quotations omitted" }, { "page": "368" }, { "page": "370" } ], "opinion_index": 0 }, { "cite": "347 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551295 ], "year": 1998, "pin_cites": [ { "page": "559", "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0555-01" ] }, { "cite": "183 N.C. 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App.", "case_ids": [ 11469961 ], "year": 1998, "pin_cites": [ { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0675-01" ] }, { "cite": "430 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "918", "parenthetical": "quotation and citation omitted" } ], "opinion_index": 0 }, { "cite": "334 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529175 ], "year": 1993, "pin_cites": [ { "page": "75", "parenthetical": "quotation and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0067-01" ] }, { "cite": "639 S.E.2d 82", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637636 ], "year": 2007, "pin_cites": [ { "page": "88" } ], "opinion_index": 1, "case_paths": [ "/se2d/639/0082-01" ] }, { "cite": "645 S.E.2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638713 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "99-100" } ], "opinion_index": 1, "case_paths": [ "/se2d/645/0093-01" ] }, { "cite": "181 N.C. App. 295", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8373726 ], "year": 2007, "pin_cites": [ { "page": "302" } ], "opinion_index": 1, "case_paths": [ "/nc-app/181/0295-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 1 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "282 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "446" } ], "opinion_index": 1 }, { "cite": "304 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565336 ], "year": 1981, "pin_cites": [ { "page": "103" } ], "opinion_index": 1, "case_paths": [ "/nc/304/0093-01" ] }, { "cite": "243 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "351" } ], "opinion_index": 1 }, { "cite": "294 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574036 ], "year": 1978, "pin_cites": [ { "page": "523" } ], "opinion_index": 1, "case_paths": [ "/nc/294/0503-01" ] }, { "cite": "415 S.E.2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "561", "parenthetical": "emphasis added" }, { "page": "561" }, { "page": "557" } ], "opinion_index": 1 }, { "cite": "331 N.C. 199", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497633 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "210", "parenthetical": "emphasis added" }, { "page": "210" } ], "opinion_index": 1, "case_paths": [ "/nc/331/0199-01" ] }, { "cite": "495 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "368", "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "347 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551295 ], "year": 1998, "pin_cites": [ { "page": "559", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/nc/347/0555-01" ] }, { "cite": "183 N.C. App. 160", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8202320 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "168-69" } ], "opinion_index": 1, "case_paths": [ "/nc-app/183/0160-01" ] } ], "analysis": { "cardinality": 1104, "char_count": 31874, "ocr_confidence": 0.752, "pagerank": { "raw": 9.44559605438861e-08, "percentile": 0.5170869035221745 }, "sha256": "24c258c26e9a05f1cf82d96a72e478c01a43e124b0705306d3b6bd8bb256d3c6", "simhash": "1:abe94c2a7e0e8cde", "word_count": 5183 }, "last_updated": "2023-07-14T16:47:52.494477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "NO ERROR.", "Judge ELMORE concurs.", "Judge WYNN concurs in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. KARSHIA BLIAMY LY and JEFFREY XIONG" ], "opinions": [ { "text": "BRYANT, Judge.\nKarshia Bliamy Ly and Jeffrey Xiong (defendants) appeal from judgments dated 8 May 2000 and entered consistent with jury verdicts finding defendants guilty of two counts each of robbery with a firearm, five counts each of first-degree kidnapping, and one count each of felonious breaking and entering. We find no error.\nFacts & Procedural Flistory\nOn 1 April 1999, at approximately 5:30 p.m., Nhia Ly arrived at 1477 Hilltop Street in Albermarle, North Carolina where he resided with his parents, Kia and Xang Ly, and his wife and his two children. Nhia noticed nothing unusual when he approached the sliding glass door entrance to the house. However, after entering the house, as he walked towards the kitchen, Nhia was accosted by four unmasked males. One of the males pointed a gun in his face while the others shouted obscenities at him and ordered him to get down on the floor and \u201cshut up.\u201d Once Nhia was on the floor, the assailants turned his head to the right, blindfolded him, and tied his hands behind his back. The assailants asked Nhia where his mother, wife and children were, then dragged him into the bathroom. While still bound and detained in the bathroom, Nhia overheard his father\u2019s truck pull into the driveway, his father enter the house, and the assailants restrain and bind him. Over the next five to ten minutes Nhia also overheard his mother, his sister-in-law, and his brother enter the house and the assailants attack and restrain each person.\nThe State also presented the testimony of Xang Ly, Nhia\u2019s father. Xang Ly testified he entered the Hilltop Street house through the front door at approximately 5:45 p.m. carrying a black bag containing currency in the amount of $8,000.00. Xang Ly testified that defendant Ly approached with a gun pointed towards him. Two other men came from behind defendant Ly, took the black bag, pushed Xang Ly, tied his hands behind his back, and blindfolded him. Xang Ly identified defendant Ly as one of the assailants and testified he recognized defendant Ly because defendant Ly\u2019s family were tenants in one of his rental properties. The State also presented the testimonies of Kia Ly, Nou Ly, and Pheng Ly. Each witness testified to substantially the same facts as Nhia Ly and Xang Ly.\nOn 2 August 1999, defendant Ly was indicted on one count of breaking and entering, two counts of robbery with a dangerous weapon, and five counts of first-degree kidnapping. On 13 September 1999, defendant Xiong was indicted on one count of breaking and entering, two counts of robbery with a dangerous weapon, and five counts of first-degree kidnapping. Defendants\u2019 cases were joined and came on for trial on 1 May 2000. On 5 May 2000, a jury returned a verdict finding both defendants guilty of one count of breaking and entering, two counts of robbery with a dangerous weapon, and five counts of first-degree kidnapping. In a judgment dated 5 May 2000, the trial court sentenced each defendant to two consecutive terms of 64 to 86 months imprisonment followed by two consecutive terms of 73 to 94 months imprisonment. Defendants appeal.\nDefendants jointly raise four issues: (I) whether there is sufficient evidence of restraint apart from that inherent in the offense of robbery with a dangerous weapon to support the kidnapping convictions; (II) whether there was sufficient evidence that the victims were not released in a safe place to support the first-degree kidnapping convictions; (III) whether the indictments of breaking and entering were fatally defective because they did not sufficiently allege the identity and location of the building; and (IV) whether the breaking and entering convictions must be vacated because there is insufficient evidence that defendants intended to commit a felony at the time of the entry. In addition, defendant Xiong raises two separate issues: (I) whether the trial court erred by admitting hearsay evidence as corroborative testimony; and (II) whether defendant Xiong received effective assistance of counsel during the sentencing hearing. For the reasons given below, we find no error.\nI&II '\nDefendants argue the trial court erred by denying their motions to dismiss the first-degree kidnapping charges. We disagree.\nThe standard of review for a motion to dismiss is, \u201cwhether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u201d State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (quotation and citation omitted). \u201cWhen ruling on a motion to dismiss, all of the evidence should be considered in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence.\u201d State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). \u201cAny contradictions or discrepancies in the evidence are for the jury to resolve and do not warrant dismissal.\u201d State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992).\nA. Restraint of victims\nDefendants argue the first-degree kidnapping charges should have, been dismissed because the restraint of the victims was an inherent part of robbery with a dangerous weapon and no separate or independent restraint or removal occurred. We disagree.\nFirst-degree kidnapping is the unlawful confinement, restraint or removal from one place to another, of any other person 16 years of age or over without the consent of such person for the purpose of facilitating the commission of any felony or facilitating flight of any person following the commission of a felony. N.C.G.S. \u00a7 14-39(a) (2007). \u201cA person may not be convicted of kidnapping and another felony if the restraint or removal is an inherent and inevitable element of the other felony, such as robbery with a dangerous weapon.\u201d State v. Morgan, 183 N.C. App. 160, 166, 645 S.E.2d 93, 99 (2007). \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 exposed the victim to greater danger than that inherent in the armed robbery itself.\u201d State v. Beatty, 347 N.C. 555, 559, 495 S.E.2d 367, 369 (1998) (citation and quotations omitted). Our Supreme Court held in State v. Pigott, 331 N.C. 199, 415 S.E.2d 555 (1992):\nall 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 exposed the victim to a greater danger than that inherent in the armed robbery itself. This action, which had the effect of increasing the victim\u2019s helplessness and vulnerability . .. constituted such additional restraint as to satisfy that element of the kidnapping crime.\nId. at 210, 415 S.E.2d at 561.\nIn Morgan, the defendant was convicted of two counts of both first-degree kidnapping and robbery with a dangerous weapon. Morgan, 183 N.C. App. at 163, 645 S.E.2d at 97. This Court, in upholding the defendant\u2019s kidnapping convictions, determined that the restraint was not a necessary part of the robbery because the defendant placed the victims in greater danger than that inherent in the armed robbery by binding the victims\u2019 wrists with duct tape. Id. at 166, 645 S.E.2d at 99. Likewise, in Beatty, the defendant was convicted of two counts of kidnapping. Beatty, 347 N.C. App. at 556, 495 S.E.2d at 368. Our Supreme Court upheld the defendant\u2019s conviction as to one of the victims because the defendant restrained that victim by binding his wrists. Id. at 559, 495 S.E.2d at 370. The Court reasoned that by binding the victim, defendant \u201cincreased the victim\u2019s helplessness and vulnerability beyond what was necessary to enable him and his comrades to rob the restaurant.\u201d Id.\nHere, defendants bound and blindfolded each victim as he or she entered the home, forced them to lie on the floor, and left the victims bound. In addition, one of the victims attempted to escape, but was brought back to the house at gunpoint, and was bound and blindfolded. As in Beatty and Morgan, the restraint of the victims in the present case was not necessary to effectuate the armed robbery and the victims were placed in greater danger than that inherent in the offense of robbery with a dangerous weapon. Accordingly, defendants\u2019 motions to dismiss were properly denied. This assignment of error is overruled.\nB. Release in a Safe Place\nDefendants argue their first-degree kidnapping convictions should be vacated because the victims were released in a safe place. We disagree.\nKidnapping is of the first-degree when \u201cthe person kidnapped either 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) (2007). Releasing a person in a safe place \u201cimplies a conscious, willful action on the part of the defendant to assure that his victim is released in a place of safety.\u201d State v. Jerrett, 309 N.C. 239, 262, 307 S.E.2d 339, 351 (1983). Mere relinquishment of dominion or control over the person is not sufficient to effectuate a release in a safe place. State v. Love, 177 N.C. App. 614, 625, 630 S.E.2d 234, 242 (2006).\nIn Love, the defendants were convicted of four counts of first-degree kidnapping. Like defendants in the present case, the defendants in Love contended that their victims were released in a safe place because the victims were left bound in their own home. This Court held that \u201cthe mere departing of a premise\u201d was not an affirmative action sufficient to effectuate a release in a safe place. Id. at 626, 630 S.E.2d at 242. Similarly, in Morgan, the defendant left the victims restrained by duct tape in their hotel room after the defendant stole the victims\u2019 cash and cell phones. This Court, in upholding the defendant\u2019s first-degree kidnapping conviction, reasoned there was no \u201caffirmative or wilful action on the part of defendants to \u2018release\u2019 the victims.\u201d Morgan, 183 N.C. App. at 167-68, 645 S.E.2d at 100.\nAs in Love and Morgan, defendants in the present case committed no affirmative or wilful act to release the victims in a safe place. Defendants departed the premises leaving the victims bound, blindfolded, and without access to a telephone. Without any action on either defendant\u2019s part to release the victims in a safe place, there was sufficient evidence to submit a charge of first-degree kidnapping to the jury. Therefore, the trial court did not err by denying defendants\u2019 motions to dismiss the first-degree kidnapping charges and defendants\u2019 convictions stand. Accordingly, this assignment of error is overruled.\nIll\nDefendants argue their breaking and entering judgments should be vacated because the indictments failed to sufficiently allege the location and the identity of the building entered. We disagree.\nAn indictment alleging breaking and entering of a building under N.C. Gen. Stat. \u00a7 14-54 must describe the building to show that it is within the language of the statute and to identify it with reasonable particularity \u201cso as to enable the defendant to prepare his defense and plead his conviction or acquittal as a bar to further prosecution for the same offense.\u201d State v. Sellers, 273 N.C. 641, 650, 161 S.E.2d 15, 21 (1968).\nIn the present case, both indictments allege defendants broke and entered \u201ca building occupied by Xang Ly used as a dwelling house located at Albermarle, North Carolinaf.]\u201d (emphasis added). Defendants argue the indictments failed to sufficiently identify the building because Xang Ly owned six buildings used as dwelling houses and the indictments do not specify which building defendants broke and entered. Defendants base their argument on State v. Smith, 267 N.C. 755, 148 S.E.2d 844 (1966), where our Supreme Court vacated a conviction of breaking and entering because the indictment alleged the defendant broke and entered a building occupied by the Chatham County Board of Education but did not specify the particular building. Id. at 756, 148 S.E.2d at 845. Smith is distinguishable from the present case.\nIn the case before us, the indictments identified the particular building defendants allegedly broke and entered as \u201ca building occupied by Xang Ly used as a dwelling.\u201d Unlike the indictment in Smith, the description of the building in the present case specifically identified the building as a building which Xang' Ly used as a dwelling. Although the evidence at trial tended to show that Xang Ly owned several buildings, including six rental houses, the evidence also showed there was only one building where Xang Ly actually lived\u2014 the 1147 Hilltop Street residence. Therefore, we hold the indictments where sufficient to reasonably identify the building as required by N.C.G.S. \u00a7 14-54. Accordingly, the trial court did not err in denying defendants\u2019 motions to dismiss. This assignment of error is overruled.\nIV\nDefendants argue the trial court erred by denying their motions to dismiss the breaking and entering charges because the State failed to present sufficient evidence that defendants intended to commit robbery with a dangerous weapon as alleged in the indictments. We disagree.\nBreaking and entering is defined as \u201cbreak[ing] or entering] any building with [the] intent to commit any felony or larceny therein[.]\u201d N.C. Gen. Stat. \u00a7 14-54(a) (2007). Although a breaking and entering indictment is not required to state the specific felony a defendant intended to commit, State v. Worsley, 336 N.C. 268, 281, 443 S.E.2d 68, 74 (1994), \u201cwhen the indictment alleges an intent to commit a particular felony, the State must prove the particlar felonious intent alleged,\u201d State v. Wilkinson, 344 N.C. 198, 222, 474 S.E.2d 375, 388 (1996) (citation omitted). See also State v. Silas, 360 N.C. 377, 383, 627 S.E.2d 604, 608 (2006). \u201cAn essential element of the crime is that the intent exist at the time of the breaking or entering.\u201d State v. Hill, 38 N.C. App. 75, 78, 247 S.E.2d 295, 297 (1978).\nThe indictments in the present case specifically allege defendants broke and entered the Ly home with the intent to commit the felony of robbery with a dangerous weapon. The elements of robbery with a dangerous weapon are: \u201c1) the unlawful taking or attempt to take personal property from the person or in the presence of another; 2) by use or threatened use of a firearm or other dangerous weapon; 3) whereby the life of a person is endangered or threatened.\u201d State v. Wiggins, 334 N.C. 18, 35, 431 S.E.2d 755, 765 (1993). Thus, the State was required to prove defendants intended to commit robbery with a dangerous weapon at the time of the breaking and entering.\nDefendants argue there was insufficient evidence of their intent to commit robbery with a dangerous weapon at the time they entered the Ly home. \u201cIntent is an attitude or emotion of the mind and is seldom, if ever, susceptible'\u2019 of proof by direct evidence, it must ordinarily be proven by circumstantial evidence, i.e., by facts and circumstances from which it may be inferred.\u201d State v. Gammons, 260 N.C. 753, 756, 133 S.E.2d 649, 651 (1963). In breaking and entering cases, \u201c[t]he intent to commit the felony must be present at the time of entrance, and this can but need not be inferred from the defendant\u2019s subsequent actions.\u201d State v. Montgomery, 341 N.C. 553, 566, 461 S.E.2d 732, 739 (1995).\nHere, the evidence shows defendants entered the Ly home with the knowledge that members of the Ly family would arrive home while defendants were still inside. The evidence also shows defendants were not surprised when Nhia Ly arrived home, but were prepared for his arrival as demonstrated by the immediacy with which defendants accosted, bound and blindfolded Nhia Ly. Also, the evidence shows defendants asked Nhia Ly the location of members of his family, demonstrating that defendants were familiar with the Ly family. As each member of the Ly family arrived home, defendants were well prepared to overcome them in the same manner in which they overcame Nhia Ly. In addition, the evidence shows defendants were armed with two guns when they entered the Ly home. The evidence presented was sufficient for the jury to conclude that defendants intended to commit robbery with a dangerous weapon at the time defendants entered the Ly home. Accordingly, the State met its burden of proving each element of breaking and entering including intent. Therefore, this assignment of error is overruled.\nDefendant Xiong\u2019s Appeal\nI\nCorroborative Testimony\nIn addition to the issues raised jointly with defendant Ly, defendant Xiong argues he is entitled to a new trial because the trial court erroneously admitted hearsay testimony. We disagree.\nDefendant Xiong specifically argues Detective Danny Bowen\u2019s testimony was erroneously admitted as corroborative testimony because it contradicted the testimony of one witness, Nhia Ly. Nhia Ly testified at trial that during an interview with Detective Bowen on 2 April 1999, he did not identify defendant Xiong as a suspect. Later, Detective Bowen testified that during the interview with the Ly family on 2 April 1999, Nhia, Pheng, and Nou Ly were the primary family members who answered his questions and that Nhia along with Pheng and Nou gave him defendant Xiong\u2019s name as a suspect. Before Detective Bowen testified about statements made by members of the Ly family during the 2 April 1999 interview, the trial court gave a limiting instruction to the jury to \u201conly consider [Detective Bowen\u2019s] testimony for the purpose of assessing the credibility of the witnesses that have already testified, and for no other purpose.\u201d\n\u201cIt is well established that a witness\u2019 prior consistent statements may be admitted to corroborate the witness\u2019 sworn trial testimony but prior statements admitted for corroborative purposes may not be used as substantive evidence.\u201d State v. Gell, 351 N.C. 192, 204, 524 S.E.2d 332, 340 (2000). \u201cHowever, the State may not introduce as corroboration prior statements that actually, directly contradict trial testimony.\u201d Id.\nHere, Detective Bowen\u2019s testimony was admitted as corroborative testimony. Detective Bowen\u2019s testimony was not elicited to corroborate one particular family member\u2019s testimony, but was intended to corroborate the testimonies given by Nhia, Pheng and Nou. Although Nhia Ly testified at trial that he did not give defendant Xiong\u2019s name to Detective Bowen as a suspect on 2 April 1999, two other witnesses, Pheng Ly and Nou Ly, testified at trial that they gave defendant Xiong\u2019s name to Detective Bowen on 2 April 1999. Given the trial court\u2019s limiting instruction and the testimonies by Pheng Ly and Nou Ly, Detective Bowen\u2019s corroborative testimony regarding the 2 April 1999 interview with members of the Ly family was properly admitted. Accordingly, this assignment of error is overruled.\nII\nSentencing Hearing\nDefendant Xiong argues he is entitled to a new sentencing hearing because he did not receive effective assistance of counsel at the sentencing hearing. We disagree.\nDefendant Xiong\u2019s counsel stated the following during the sentencing hearing:\n[Defense Counsel]: Your Honor, I\u2019ve known some years this day would come, a hesitant prize fighter that\u2019s come into the ring one too many times, a lesson to be learned. And I\u2019ll have the weekend to reexamine what I\u2019m to do in the future.\nThe Court: All right. Do you want to be heard on behalf of your client?\n[Defense Counsel]: No, Your Honor, I do not.\n\u201cTo prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel\u2019s performance was deficient and then that counsel\u2019s deficient performance prejudiced his defense.\u201d State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)), writ of cert. denied, 166 L. Ed. 2d 116 (2006). \u201cGenerally, \u2018to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u2019 \u201d Id. (quoting Wiggins v. Smith, 539 U.S. 510, 534, 156 L. Ed. 2d 471, 493 (2003)). \u201cA reasonable probability is a probability sufficient to undermine confidence in the outcome.\u201d Id. (quotation omitted).\nIn State v. Taylor, 79 N.C. App. 635, 339 S.E.2d 859 (1986), the defense counsel refrained from speaking or presenting evidence during the sentencing hearing. This Court determined the defense counsel\u2019s decision, although \u201ctroublesome,\u201d did not \u201cconstitute[] deficient performance prejudicial to the defendant.\u201d Id. at 637, 339 S.E.2d at 861. The defense counsel\u2019s decision to remain silent was \u201c \u2018strategy and trial tactics\u2019 properly left within the control of counsel.\u201d Id. at 638, 339 S.E.2d at 861.\nHere, as in Taylor, defense counsel refrained from speaking or presenting evidence during defendant Xiong\u2019s sentencing hearing. Unlike the case of State v. Davidson, 77 N.C. App. 540, 335 S.E.2d 518 (1985), relied on by defendant Xiong, where the defense counsel not only refused to present evidence during the sentencing hearing but also made negative statements regarding the defendant, the statements made by defense counsel in the present case were not concerning defendant Xiong and did not prejudice him. Therefore, we are constrained to hold that defendant Xiong has not demonstrated that his counsel\u2019s performance was deficient or that he was prejudiced by said performance. Accordingly, this assignment of error is overruled.\nDefendants\u2019 remaining assignments of error are deemed abandoned pursuant to N.C. R. App. P 28(b)(6) (2007) because defendants have failed to make any argument in support thereof.\nNO ERROR.\nJudge ELMORE concurs.\nJudge WYNN concurs in a separate opinion.", "type": "majority", "author": "BRYANT, Judge." }, { "text": "WYNN, Judge,\nconcurring in result only.\nI concur with the majority opinion\u2019s holding that, under our previous precedents, we must affirm Defendants\u2019 convictions for first-degree kidnapping and other charges. I write separately to point out that our recent case law fails to make any distinction between the crimes of first-degree kidnapping and robbery with a dangerous weapon in the context of armed home invasions.\nAs our Supreme Court articulated in State v. Fulcher,\nIt is self-evident that certain felonies (e.g., forcible rape and armed robbery) cannot be committed without some restraint of the victim. We are of the opinion, and so hold, that G.S. 14-39 was not intended by the Legislature to make a restraint, which is an inherent, inevitable feature of such other felony, also kidnapping so as to permit the conviction and punishment of the defendant for both crimes. To hold otherwise would violate the constitutional prohibition against double jeopardy. Pursuant to the above mentioned principle of statutory construction, we construe the word \u201crestrain,\u201d as used in G.S. 14-39, to connote a restraint separate and apart from that which is inherent in the commission of the other felony.\n294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). In applying the test laid out in Fulcher, the Supreme Court further clarified,\nThe key question here 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, . . . [or] is . . . subjected to the kind of danger and abuse the kidnapping statute was designed to prevent.\nState v. Pigott, 331 N.C. 199, 210, 415 S.E.2d 555, 561 (1992) (emphasis added) (quoting State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981)). Thus, when faced with the type of armed-home invasion that occurred in the instant case, the critical issue is whether the restraint used by the defendants placed the victims in \u201cgreater danger\u201d or subjected the victims to a particular \u201cdanger and abuse\u201d aside from that which is inherent in robbery with a dangerous weapon.\nIn State v. Beatty, our Supreme Court found that \u201cthe binding and kicking [of the victim] were not inherent, inevitable parts of the robbery\u201d and exposed the victim to a greater degree of danger than which is inherent in an armed robbery. 347 N.C. 555, 559, 495 S.E.2d 367, 368 (1998) (emphasis added). Likewise, in Pigott, the binding of the victim\u2019s hands and feet, \u201crendering him utterly helpless,\u201d was held to \u201cconstitute [] such additional restraint as to satisfy that element of the kidnapping crime.\u201d 331 N.C. at 210, 415 S.E.2d at 561. However, the victim in Pigott was also shot in the head while bound, and was found to have died either from the gunshot wound or from smoke inhalation from the fire that the defendant subsequently set to the building. Id. at 202, 415 S.E.2d at 557.\nIn the instant case, this Court is bound by our prior holding in State v. Morgan, 183 N.C. App. 160, 645 S.E.2d 93 (2007). See In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (\u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d). In Morgan, this Court held that simply binding the victims, even in the absence of other physical violence, was sufficient to sustain a charge of first-degree kidnapping. 183 N.C. App. at 168-69, 645 S.E.2d at 99-100. Thus, on the question of restraint, this Court has extended the holdings of our Supreme Court to the point wherein any binding of the victims in an armed home invasion or robbery will constitute restraint sufficient to sustain a charge of kidnapping. I note the subsequent incongruity of outcomes in a case such as this, in which the victims were loosely bound and physically unharmed, but the defendants are nonetheless guilty of first-degree kidnapping, and a case such as State v. Wade, in which we vacated the charge of second-degree kidnapping because the dragging and severe beating of the victim \u2014 but without binding his hands or feet \u2014 was held to be \u201can inherent and integral part of either the robbery with a dangerous weapon or the assault.\u201d 181 N.C. App. 295, 302, 639 S.E.2d 82, 88 (2007). This incongruence needs resolution by our Supreme Court.", "type": "concurrence", "author": "WYNN, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney Generals Creecy Chandler Johnson and Harriet F Worley, for the State.", "Gilda C. Rodriguez for defendant-appellant Karshia Bliamy Ly.", "Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant Jeffrey Xiong." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KARSHIA BLIAMY LY and JEFFREY XIONG\nNo. COA07-578\n(Filed 1 April 2008)\n1. Kidnapping\u2014 first-degree \u2014 motion to dismiss \u2014 sufficiency of evidence \u2014 restraint separate from robbery with dangerous weapon\nThe trial court did not err by denying defendants\u2019 motions to dismiss the five first-degree kidnapping charges even though defendants contend the restraint of the victims was an inherent part of robbery with a dangerous weapon instead of a separate or independent restraint or removal because: (1) defendants bound and blindfolded each victim as he or she entered the room, forced them to lie on the floor, and left the victims bound; (2) one of the victims attempted to escape, but was brought back to the house at gunpoint and was bound and blindfolded; and (3) the restraint of the victims was not necessary to effectuate the armed robbery, and the victims were placed in greater danger than that inherent in the offense of robbery with a dangerous weapon.\n2. Kidnapping\u2014 first-degree \u2014 motion to dismiss \u2014 sufficiency of evidence \u2014 safe place\nThe trial court did not err by denying defendants\u2019 motions to dismiss the five first-degree kidnapping charges even though defendants contend the victims were released in a safe place because: (1) defendants committed no affirmative or willful act to release the victims in a safe place; (2) defendants departed the premises leaving the victims bound, blindfolded, and without access to a telephone; and (3) although defendants contend their victims were released in a safe place since they were left bound in their home, the mere departing of a premises was not an affirmative \u00e1ct suffici\u00e9nt to effectuate a release in a safe place.\n3. Burglary and Unlawful Breaking or Entering\u2014 indictment \u2014 location and identity of building entered\nThe trial court did not err by denying defendants\u2019 motions to dismiss the charges of breaking and entering even though defendants contend the indictment failed to sufficiently allege the location and the identity of the building entered because: (1) both indictments allege defendants broke and entered a building occupied by Xang Ly used as a dwelling house located at Albemarle, North Carolina; and (2) although the evidence at trial tended to show that Xang Ly owned several buildings including six rental houses, the evidence also showed there was only one building where he actually lived, which was the 1147 Hilltop Street residence.\n4. Burglary and Unlawful Breaking or Entering\u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying defendants\u2019 motions to dismiss a breaking and entering charge even though defendant contends the State failed to present sufficient evidence that defendants intended to commit robbery with a dangerous weapon as alleged in the indictment because the evidence showed: (1) defendants entered the victims\u2019 home with the knowledge that members of the family would arrive at the home while defendants were still inside; (2) defendants were not surprised and were prepared for the arrival of the first victim as demonstrated by the immediacy with which defendants accosted, bound, and blindfolded him; (3) defendants asked the first victim the location of members of his family, thus demonstrating that defendants were familiar with the family; (4) as each member of the family arrived home, defendants were well prepared to overcome them in the same manner in which they overcame the first victim; (5) defendants were armed with two guns when they entered the victims\u2019 home; and (6) defendants took a black bag containing money from one of the victims.\n5. Evidence\u2014 hearsay \u2014 corroboration\u2014limiting instruction\nThe trial court did not err in a double robbery with a firearm, multiple first-degree kidnapping, and felonious breaking and entering case by admitting alleged hearsay testimony from a detective as corroboration even though one defendant contends it contradicted the testimony of one of the victims because: (1) the trial court gave a limiting instruction to the jury to only consider the detective\u2019s testimony for the purpose of assessing the credibility of the witnesses that had already testified and for no other purpose; (2) the testimony was not elicited to corroborate one particular family member victim\u2019s testimony, but was intended to corroborate the testimonies given by three family members; and (3) although one victim testified at trial that he did not give this defendant\u2019s name to the detective as a suspect on 2 April 1999, the two other victims testified at trial that they did.\n6. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to present evidence during sentencing hearing \u2014 trial strategy\nDefendant did not receive ineffective assistance of counsel in a double robbery with a firearm, multiple first-degree kidnapping, and felonious breaking and entering case based on defense counsel refraining from speaking or presenting evidence during defendant\u2019s sentencing hearing because defense counsel\u2019s decision to remain silent was strategy and trial tactics properly left within the control of counsel.\nJudge WYNN concurring in the result.\nAppeal by defendants from judgments dated 8 May 2000 by Judge Sanford L. Steelman, Jr. in Stanly County Superior Court. Heard in the Court of Appeals 27 November 2007. .\nAttorney General Roy Cooper, by Assistant Attorney Generals Creecy Chandler Johnson and Harriet F Worley, for the State.\nGilda C. Rodriguez for defendant-appellant Karshia Bliamy Ly.\nAppellate Defender Staples S. Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant Jeffrey Xiong." }, "file_name": "0422-01", "first_page_order": 454, "last_page_order": 467 }