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      "STATE OF NORTH CAROLINA v. MARIO DEANDRE TAYLOR, Dependant"
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      {
        "text": "GEER, Judge.\nDefendant Mario Deandre Taylor appeals from his convictions of one count of robbery with a dangerous weapon and 10 counts of second degree kidnapping. Defendant primarily challenges the trial court\u2019s denial of his motion to dismiss his second degree kidnapping charges, arguing that the State failed to produce sufficient evidence of confinement, restraint, or removal beyond that which was inherent in the robbery with a dangerous weapon. Because we agree with defendant that the State failed to meet its burden, as required by State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978), and its progeny, of establishing an act of confinement, restraint, or removal separate and apart from the robbery, we vacate defendant\u2019s second degree kidnapping convictions.\nFacts\nThe State\u2019s evidence tended to establish the following facts. On the evening of 14 February 1998, defendant and another man entered a McDonald\u2019s restaurant wearing masks. Defendant, who held a 9mm pistol, ordered everyone to lie face down on the floor. When a cashier remained standing, defendant pointed his gun at her and again ordered her to lay down on the floor. Defendant and the other man took the restaurant manager to the back of the restaurant where the safe was located and ordered her to open it. A third man, who had subsequently entered the restaurant, remained in the lobby watching the customers and employees. The cashier, however, ran out of the restaurant.\nAfter defendant and the second man finished collecting the cash from the safe, the three men ran out of the restaurant through a side door. The cashier saw the men leave the restaurant and identified defendant at trial as one of the perpetrators because he had been wearing the same clothes a few days earlier when he came into the restaurant to fill out an application.\nDefendant was charged with one count of robbery with a dangerous weapon and 13 counts of second degree kidnapping. During the trial, the court dismissed two of the second degree kidnapping charges. The court dismissed the count relating to the manager because her asportation to the back of the restaurant to open the safe was \u201cpart and parcel\u201d of the robbery. With respect to the second count, the court found that no evidence had been presented at all as to that alleged victim.\nThe jury convicted defendant of robbery with a dangerous weapon and 10 counts of second degree kidnapping; it acquitted him of one count of second degree kidnapping. At sentencing, the trial court made findings regarding aggravating and mitigating factors. As an aggravating factor, the court found that defendant had joined with more than one other person in committing the robbery with a dangerous weapon and the kidnapping, but had not been indicted for conspiracy. In mitigation, the court found that defendant had a support system in the community and that he had voluntarily cooperated with the police. The court concluded that the aggravating factors outweighed the mitigating factors and, therefore, imposed aggravated sentences of (1) 120 to 153 months imprisonment for the robbery with a dangerous weapon conviction, (2) 92 to 110 months for one of his kidnapping convictions (running consecutively), (3) 92 to 110 months for a second kidnapping conviction (running consecutively), and (4) 92 to 110 months for the remaining eight kidnapping convictions (running concurrently with the second kidnapping sentence). Each of defendant\u2019s kidnapping sentences included a 60-month firearm enhancement pursuant to N.C. Gen. Stat. \u00a7 15A-1340.16(A) (2007).\nDefendant appealed in open court on 14 July 1999. While defendant was granted appellate counsel, his appeal did not progress for six years. We granted his petition for writ of certiorari on 21 February 2006.\nDiscussion\nDefendant\u2019s primary argument on appeal is that the trial court erred in denying his motion to dismiss the second degree kidnapping charges. Defendant maintains that the State presented insufficient evidence of confinement, restraint, or removal separate from that which was inherent in the robbery with a dangerous weapon and, therefore, he cannot be convicted of both offenses under State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978).\nIn Fulcher, our Supreme Court stated:\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.\nId.\nThe Supreme Court further clarified the \u201cseparate act\u201d requirement in State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981), holding that removal of an employee at knifepoint from the front to the rear of a pharmacy to open the safe and obtain drugs was \u201can inherent and integral part of the attempted armed robbery,\u201d and, therefore, the removal was legally insufficient to convict the defendant of a separate charge of kidnapping. The Court also noted that the defendant did not expose the victim \u201cto greater danger than that inherent in the armed robbery itself, nor [was the victim] subjected to the kind of danger and abuse the kidnapping statute was designed to prevent.\u201d Id. As a result, the Court concluded that the defendant\u2019s removal of the victim was \u201ca mere technical asportation\u201d requiring dismissal of the kidnapping charge. Id.\nThe Court more recently addressed this issue in State v. Ripley, 360 N.C. 333, 626 S.E.2d 289 (2006). In Ripley, the Court held:\n[A] trial court, in determining whether a defendant\u2019s asportation of a victim during the commission of a separate felony offense constitutes kidnapping, must consider whether the asportation was an inherent part of the separate felony offense, that is, whether the movement was \u201ca mere technical asportation.\u201d If the asportation is a separate act independent of the originally committed criminal act, a trial court must consider additional factors such as whether the asportation facilitated the defendant\u2019s ability to cpmmit a felony offense, or whether the asportation exposed the victim to a greater degree of danger than that which is inherent in the concurrently committed felony offense.\nId. at 340, 626 S.E.2d at 293-94.\nViewed in the light most favorable to the State, the evidence in this case indicates that defendant entered the McDonald\u2019s carrying a handgun, which he pointed at the customers and employees as he ordered them to lie face down on the floor. Defendant and another man found the manager and took her to the back of the restaurant to open the safe while a third man stood guard over the people on the floor.\nThe State contends that the robbery of the McDonald\u2019s occurred at the safe located in the back office of the restaurant, and, therefore, the restraint of the customers and employees in the lobby was unnecessary to the commission of the robbery. We, however, consider the present case to be controlled by State v. Beatty, 347 N.C. 555, 495 S.E.2d 367 (1998), in which the Supreme Court held that kidnapping charges, based on similar circumstances, should have been dismissed.\nIn Beatty, a group of men approached the owner of a restaurant outside an open door to the restaurant, put a gun to his head, and told him to go inside and open the safe. Id. at 557, 495 S.E.2d at 368. Once inside, the robbers saw two restaurant employees. One employee, Poulos, \u201cwas on his knees washing the floor at the front,\u201d while the second, Koufaloitis, \u201cstood three to.four feet from the safe cleaning the floor in the back.\u201d Id., 495 S.E.2d at 368-69. At that point, \u201c[o]ne robber put a gun to Poulos\u2019 head and stood beside him during the robbery. An unarmed robber put duct tape around Koufaloitis\u2019 wrists and told him to lie on the floor.\u201d Id.. 495 S.E.2d at 369.\nThe Supreme Court upheld the kidnapping conviction with respect to Koufaloitis, but not as to Poulos. Id. at 560, 495 S.E.2d at 370. The Court explained that \u201c[w]hen defendant bound [Koufaloitis\u2019] wrists and kicked him in the back, he increased the victim\u2019s helplessness and vulnerability beyond what was necessary to enable him and his comrades to rob the restaurant.\u201d Id. at 559, 495 S.E.2d at 370. On the other hand, \u201c[w]ith regard to victim Poulos, the evidence shows only that one of the robbers approached the victim, pointed a gun at him, and stood guarding him during the robbery. The victim did not move during the robbery, and the robbers did not injure him in any way.\u201d Id. at 560, 495 S.E.2d at 370. The Court explained further: \u201cThe only evidence of restraint of this victim was the threatened use of a firearm. This restraint is an essential element of robbery with a dangerous weapon under N.C.G.S. \u00a7 14-87, and defendant\u2019s use of this restraint exposed the victim to no greater danger than that required to complete the robbery with a dangerous weapon.\u201d Id.\nIn this case, as in Beatty, the robbery took place at a safe in the back of a restaurant, while the victims were restrained in the front by another robber guarding them with a gun, without any of the victims being bound or injured in any way. Because the restaurant\u2019s occupants were not bound, once the robbery was complete, and the perpetrators had run out of the restaurant, the occupants were not further restrained. Compare State v. Morgan, 183 N.C. App. 160, 167, 645 S.E.2d 93, 99 (2007) (upholding kidnapping conviction when \u201c[t]he evidence shows that the three robbers bound the victims with duct tape, took money and cellular telephones, and left the victims bound when they left the hotel room\u201d), appeal dismissed and disc, review denied, 362 N.C. 241, 660 S.E.2d 536 (2008).\nThe sole distinction between this case and Beatty is that the victims were required to lie down on the floor. In Ripley, 360 N.C. at 340, 626 S.E.2d at 294 (quoting Irwin, 304 N.C. at 103, 282 S.E.2d at 446), however, our Supreme Court concluded:\n[T]he asportation of the [victims] from one side of the motel lobby door to the other was not legally sufficient to justify defendant\u2019s convictions of second-degree kidnapping. The moment defendant\u2019s accomplice drew his firearm, the robbery with a dangerous weapon had begun. The subsequent asportation of the victims was \u201ca mere technical asportation\u201d that was an inherent part of the robbery defendant and his accomplices were engaged in.\nWe do not believe that defendant\u2019s order, at gunpoint, that the victims lie down on the floor is materially different than the Ripley robbers\u2019 order, also at gunpoint, that the victims move from outside the door to the lobby to inside the door. Accordingly, under Ripley, we hold that the act of requiring the victims to lie down is a mere technical asportation insufficient to sustain a charge of kidnapping separate from the robbery.\nThis conclusion is supported by this Court\u2019s decision in State v. Ross, 133 N.C. App. 310, 515 S.E.2d 252 (1999). In Ross, the record indicated \u201cthat, upon entering the apartment, [a robber] pointed the shotgun at [the two victims] and ordered them to step away from the apartment door and get on the floor.\u201d Id. at 313, 515 S.E.2d at 254. Although one of the victims backed from the living room into the kitchen before lying down, the Court held that the evidence was insufficient to establish a removal separate from the robbery when the robbers did not order the victim to move to the kitchen, but rather only ordered him to \u201cback up and get on the floor.\u201d Id. The evidence of restraint or removal was no greater in this case.\nThe State, however, points to State v. Brice, 126 N.C. App. 788, 486 S.E.2d 719 (1997), a decision rendered a year before Beatty. In Brice, one defendant was in the bedroom robbing two male victims, while a second robber was outside the house demanding money from another male victim. A third robber was in the living room with the female victim. The third robber threatened the woman with a gun and ordered her to lie face down on the floor, causing her to become ill. Id. at 790, 486 S.E.2d at 720. This Court explained in Ross that \u201c[i]n Brice, our Court held that terrorizing the woman in the living room was not an inherent part of the robbery taking place in the bedroom.\u201d Ross, 133 N.C. App. at 314, 515 S.E.2d at 255. As the Court acknowledged in Brice, this terrorization was not necessary to carry out the robbery of either the victims in the bedroom or the victim outside the house. Brice, 126 N.C. App. at 791, 486 S.E.2d at 720. We believe, however, that this case more closely resembles Beatty and Ross.\nState v. Davidson, 77 N.C. App. 540, 335 S.E.2d 518 (1985), disc. review denied, 315 N.C. 393, 338 S.E.2d 882 (1986), also relied upon by the State, is likewise inapposite. In Davidson, the defendants entered a retail store, and, at gunpoint, took the store\u2019s occupants from the front of the store to a dressing room in the rear of the store; bound their heads, arms, and legs; took their valuables; and then took cash and merchandise from the store. Id. at 541, 335 S.E.2d at 519. In upholding the kidnapping convictions, this Court concluded: \u201cRemoval of the victims to the dressing room [where none of the stolen property was kept] thus was not an inherent and integral part of the robbery.\u201d Id. at 543, 335 S.E.2d at 520. The \u201cremoval\u201d was the critical factor.\nThe State, however, points to this Court\u2019s statement in Davidson that the removal \u201cwas a separate course of conduct designed to remove the victims from the view of passersby who might have hindered the commission of the crime.\u201d Id. The State contends that the conduct in this case necessarily must have been for the same purpose. In making this argument, the State overlooks the fact that there must still have been \u201ca separate course of conduct.\u201d Id.\nIn this case, in contrast to Davidson, ho removal occurred. The only conduct presented by the State as being apart from the robbery was the guarding of victims with a gun while face down on the floor. While the removal of the victims was not necessary to the robbery in Davidson, both the use of the firearm and the presence of the individual victims were necessary to the robbery with a dangerous weapon conviction. Under N.C. Gen. Stat. \u00a7 14-87(a) (2007), a person is guilty of robbery with a dangerous weapon if that person, \u201chaving in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance ....\u201d (Emphasis added.) Consistent with the statute, the State\u2019s indictments in this case alleged the threatened use of firearms and the taking of McDonald\u2019s property while the alleged kidnapping victims were present.\nIn sum, the State\u2019s evidence of kidnapping established only the elements of the crime of robbery with a dangerous weapon with the lone added component of the victims\u2019 being required to lie down on the floor. Under Ripley, that lone act is a mere technical asportation. As a result, unlike Davidson, the State presented no additional evidence of restraint, confinement, or removal beyond that necessary to commit the robbery.\nWe, therefore, hold that the evidence in the record is insufficient to support defendant\u2019s convictions for second degree kidnapping under Fulcher, and the trial court should have granted defendant\u2019s motion to dismiss those charges. Because we are vacating defendant\u2019s second degree kidnapping convictions, we do not address defendant\u2019s additional arguments relating to those convictions. Defendant does not make any arguments on appeal regarding his robbery with a dangerous weapon conviction and thus, as to that conviction, we find no error.\nVacated in part; no error in part.\nJudges WYNN and STEELMAN concur.",
        "type": "majority",
        "author": "GEER, Judge."
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    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Charlie E. Reece, for the State.",
      "Jarvis John Edgerton, IVfor defendant-appellant."
    ],
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    "head_matter": "STATE OF NORTH CAROLINA v. MARIO DEANDRE TAYLOR, Dependant\nNo. COA07-391\n(Filed 5 August 2008)\nKidnapping\u2014 during robbery \u2014 insufficient evidence of separate offense\nThe evidence was not sufficient to support convictions for second-degree kidnapping where defendant and others entered a McDonald\u2019s, made the patrons and workers lie down, and took the manager to the back to open the safe. The evidence establishes only the elements of robbery with the one added component of the victims being required to lie down, which was a mere technical asportation.\nAppeal by defendant from judgments entered 14 July 1999 by Judge Donald Jacobs in Durham County Superior Court. Heard in the Court of Appeals 30 October 2007.\nAttorney General Roy Cooper, by Assistant Attorney General Charlie E. Reece, for the State.\nJarvis John Edgerton, IVfor defendant-appellant."
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