{ "id": 571719, "name": "STATE OF NORTH CAROLINA v. TERRY ANTHONY RUFF", "name_abbreviation": "State v. Ruff", "decision_date": "1998-10-09", "docket_number": "No. 550PA97", "first_page": "213", "last_page": "217", "citations": [ { "type": "official", "cite": "349 N.C. 213" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "492 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": -1 }, { "cite": "127 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798843 ], "year": 1997, "opinion_index": -1, "case_paths": [ "/nc-app/127/0575-01" ] }, { "cite": "1993 N.C. Sess. Laws 2298", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "311 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 295", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2397021 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0295-01" ] }, { "cite": "334 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "227-28" } ], "opinion_index": 0 }, { "cite": "314 N.C. 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695328 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0442-01" ] }, { "cite": "492 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "379-80" }, { "page": "379", "parenthetical": "quoting Westmoreland, 314 N.C. at 449, 334 S.E.2d at 227-28" }, { "page": "379-80" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798843 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "585" }, { "page": "583", "parenthetical": "quoting Westmoreland, 314 N.C. at 449, 334 S.E.2d at 227-28" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0575-01" ] } ], "analysis": { "cardinality": 459, "char_count": 10207, "ocr_confidence": 0.762, "pagerank": { "raw": 1.0127018512362114e-07, "percentile": 0.5425656090374381 }, "sha256": "019681fe5792ef8d889851abf40d1e3923a6467cce2de9b1c719c4389c2c5812", "simhash": "1:ab3bebce644f565c", "word_count": 1645 }, "last_updated": "2023-07-14T15:15:14.712587+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Wynn did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. TERRY ANTHONY RUFF" ], "opinions": [ { "text": "MITCHELL, Chief Justice.\nDefendant was indicted on 24 July 1995 for first-degree kidnapping and first-degree rape. He was tried at the 12 February 1996 Criminal Session of Superior Court, Cleveland County. The jury found defendant guilty of both charges. On 20 February 1996, the trial court arrested judgment on the first-degree kidnapping conviction and entered judgment sentencing defendant for second-degree kidnapping. Defendant received a minimum sentence of thirty-two months\u2019 imprisonment for the class E felony, which was then enhanced by sixty months pursuant to N.C.G.S. \u00a7 15A-1340.16A, resulting in a minimum sentence of 92 months\u2019 and a maximum sentence of 120 months\u2019 imprisonment. In a separate judgment, defendant was also sentenced to a consecutive term of from 320 months\u2019 to 393 months\u2019 imprisonment for the class B1 felony of first-degree rape. Defendant gave notice of appeal to the North Carolina Court of Appeals on 20 February 1996.\nOn appeal, the Court of Appeals vacated the part of the judgment for kidnapping that imposed an enhanced sentence of sixty months\u2019 imprisonment for use of a firearm during the commission of second-degree kidnapping. State v. Ruff, 127 N.C. App. 575, 585, 492 S.E.2d 374, 379-80 (1997). For the reasons discussed herein, we conclude that the Court of Appeals erroneously vacated defendant\u2019s enhanced sentence. Accordingly we reverse the Court of Appeals and reinstate defendant\u2019s enhanced sentence.\nThe State\u2019s evidence tended to show that the victim was a female employed by the Lutz Oil Company in Shelby, North Carolina. On 13 June 1995, Mr. Lutz, president of Lutz Oil Company, asked the victim to drive to the Kings Mountain store in order to cover for another employee while that employee went to lunch. The victim left her Shelby office at 12:15 p.m. and arrived at the Kings Mountain store at approximately 12:30 p.m. Shortly after the victim arrived at the Kings Mountain store, she began to clean the bathroom. While cleaning, she heard a side door open. The victim left the water in the bathroom running in order to attend to what she believed to be a customer. The customer, later identified as defendant, asked her for some cigarettes. As the victim turned around after reaching for the cigarettes, she saw a gun pointing at her face. While holding the gun, defendant told the victim to be quiet and to cooperate.\nDefendant then held his gun to the victim\u2019s side and escorted her outside to his pickup truck. She testified that she did not scream or try to escape because she believed defendant would kill her if she did so. Defendant and the victim then traveled down Stoney Point Road. Defendant stopped the truck and led the victim to a field while holding the gun to her back. At one point, defendant stopped and took off the victim\u2019s pantyhose, but then continued to lead her further into the field so they could not be seen from the road. Once they stopped again, he removed her shirt and told her to remove her skirt and bra. Defendant also removed his own clothes and removed the victim\u2019s underpants himself. Defendant ordered the victim to lie down, then proceeded to commit sexual acts against her and to rape her. Afterwards, defendant got dressed and unloaded his gun. He then said, \u201cIf I\u2019d known it was this easy, I would never have brought my gun.\u201d\nAs the victim and defendant traveled back towards the store, the victim convinced defendant to let her out of the truck before arriving at the store. After defendant let the victim out, she ran to the store and saw a co-employee and a police officer. After describing defendant to the officer, she was taken to Cleveland Memorial Hospital for examination. The police apprehended defendant shortly thereafter.\nThe State contends that the Court of Appeals incorrectly vacated the part of defendant\u2019s sentence that was enhanced by reason of his use of a firearm. The State argues that in reaching its decision, the Court of Appeals erroneously relied upon State v. Westmoreland, 314 N.C. 442, 334 S.E.2d 223 (1985), and State v. Lattimore, 310 N.C. 295, 311 S.E.2d 876 (1984). We agree.\nIn the decision below, the Court of Appeals noted that under State v. Westmoreland, a trial court \u201ccould not aggravate [a] sentence with acts of the defendant \u2018which form[ed] the gravamen of contemporaneous convictions of joined offenses.\u2019 \u201d State v. Ruff, 127 N.C. App. 575, 583, 492 S.E.2d 374, 379 (1997) (quoting Westmoreland, 314 N.C. at 449, 334 S.E.2d at 227-28) (second alteration in original). The Court of Appeals then found that the use of a firearm was the \u201cgravamen\u201d of defendant\u2019s first-degree rape conviction, and therefore the trial court could not use it to aggravate defendant\u2019s second-degree kidnapping conviction. Id. at 585, 492 S.E.2d at 379-80. Westmoreland and Lattimore, the cases upon which the Court of Appeals relied in reaching its decision in the present case, were decided under the former Fair Sentencing Act, N.C.G.S. ch. 15A, art. 81A (1988). However, our legislature has since repealed the Fair Sentencing Act. Act of July 24, 1993, ch. 538, sec. 14, 1993 N.C. Sess. Laws 2298, 2318. Since defendant was found guilty and sentenced for crimes occurring after 1 October 1994, the Structured Sentencing Act, N.C.G.S. ch. 15A, art. 81B (1997), provides the controlling law. N.C.G.S. \u00a7 15A-1340.10 (1997).\nThe firearm enhancement section of the Structured Sentencing Act provides:\nIf a person is convicted of a Class A, B1, B2, C, D, or E felony and the court finds that the person used, displayed, or threatened to use or display a firearm at the time of the felony, the court shall increase the minimum term of imprisonment to which the person is sentenced by 60 months. The court shall not suspend the 60-month minimum term of imprisonment imposed as an enhanced sentence under this section and shall not place any person sentenced under this section on probation for the enhanced sentence.\nN.C.G.S. \u00a7 15A-1340.16A(a). This provision does not apply, however, where \u201c[t]he evidence of the use, display, or threatened use or display of a firearm is needed to prove an element of the underlying . . . felony.\u201d N.C.G.S. \u00a7 15A-1340.16A(b)(2).\nWe conclude the trial court correctly applied the firearm enhancement section in this case. Even though the jury found defendant guilty of first-degree rape and first-degree kidnapping, the trial court arrested judgment on the first-degree kidnapping conviction and entered judgment sentencing defendant for second-degree kidnapping instead. Defendant\u2019s conviction and sentence for the first-degree rape remained intact. N.C.G.S. \u00a7 15A-1340.16A requires the trial court to increase defendant\u2019s term of imprisonment for a felony when the trial court finds that defendant \u201cused, displayed, or threatened to use or display a firearm at the time of the felony.\u201d Here, defendant displayed a firearm when he kidnapped and raped the victim. The \u201cunderlying felony\u201d which was enhanced by sixty months\u2019 imprisonment under the firearm enhancement section is second-degree kidnapping. Because the use or display of a firearm is not an essential element of second-degree kidnapping, the trial court was not precluded from relying on evidence of defendant\u2019s use of the firearm and enhancing defendant\u2019s term of imprisonment pursuant to the firearm enhancement section. See N.C.G.S. \u00a7 15A-1340.16A(b)(2).\nIn determining whether defendant\u2019s sentence for second-degree kidnapping could properly be enhanced under the firearm enhancement section, it is irrelevant whether the use of a firearm was the gravamen of the first-degree rape. So long as the use of a firearm is not an essential element of the underlying felony for which defendant is sentenced \u2014 here, second-degree kidnapping \u2014 defendant\u2019s term of imprisonment for that particular felony must be enhanced by sixty months.\nFor the foregoing reasons, we conclude that the Court of Appeals erred in vacating that part of defendant\u2019s sentence which was enhanced by the firearm enhancement section. Therefore, the decision of the Court of Appeals is reversed, and this case is remanded to the Court of Appeals for further remand to the Superior Court, Cleveland County, for reinstatement of the judgment for second-degree kidnapping, including the enhanced sentence for use of a firearm.\nREVERSED AND REMANDED.\nJustice Wynn did not participate in the consideration or decision of this case.", "type": "majority", "author": "MITCHELL, Chief Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Laura E. Crumpler, Assistant Attorney General, for the State-appellant.", "Brenda S. McLain for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TERRY ANTHONY RUFF\nNo. 550PA97\n(Filed 9 October 1998)\nCriminal Law \u00a7 1096 (NCI4th Rev.)\u2014 second-degree kidnapping and rape \u2014 use of firearm \u2014 kidnapping sentence enhanced\nThe trial court did not err by enhancing defendant\u2019s second-degree kidnapping conviction for the use of a firearm pursuant to N.C.G.S. \u00a7 15A-1340.16A where the jury found defendant guilty of first-degree rape and first-degree kidnapping, but the trial court arrested judgment on the first-degree kidnapping conviction and entered judgment sentencing defendant for second-degree kidnapping. The use or display of a firearm is not an essential element of second-degree kidnapping and the trial court was not precluded from relying on evidence of defendant\u2019s use of the firearm and enhancing his term of imprisonment pursuant to the firearm enhancement section. It is irrelevant whether the use of a firearm was the gravamen of the first-degree rape; so long as the use of a firearm is not an essential element of the underlying felony, defendant\u2019s term of imprisonment must be enhanced by sixty months. The cases upon which the Court of Appeals relied in vacating the enhanced sentence were decided under the former Fair Sentencing Act.\nJustice Wynn did not participate in the consideration or decision of this case.\nOn petition for discretionary review pursuant to N.C.G.S. \u00a7 7A-31 from a unanimous decision of the Court of Appeals, 127 N.C. App. 575, 492 S.E.2d 374 (1997), vacating in part and remanding a judgment entered by Huffman, J., on 20 February 1996 in Superior Court, Cleveland County. Heard in the Supreme Court 11 March 1998.\nMichael F. Easley, Attorney General, by Laura E. Crumpler, Assistant Attorney General, for the State-appellant.\nBrenda S. McLain for defendant-appellee." }, "file_name": "0213-01", "first_page_order": 251, "last_page_order": 255 }