State v. Andrews

• Court: Court of Appeals of North Carolina
• Decided: July 2, 2024
• Docket: 23-675
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-675

Filed 2 July 2024

Davie County, Nos. 19 CRS 51381, 51383; 20 CRS 279

STATE OF NORTH CAROLINA

v.

BRIAN CHRISTOPHER ANDREWS, Defendant.

Appeal by defendant from judgments entered 6 January 2023 by Judge Lori I.

Hamilton in Davie County Superior Court. Heard in the Court of Appeals 21 March

2024.

Attorney General Joshua H. Stein, by Assistant Attorney General Hyrum J. Hemingway, for the State.

Mary McCullers Reece for defendant-appellant.

THOMPSON, Judge.

Defendant Brian Christopher Andrews (defendant) appeals from the trial

court’s order entered upon a jury’s verdict finding him guilty of attempted discharge

of a firearm into an occupied vehicle in operation, attempted robbery with a firearm,

and first-degree kidnapping. On appeal, defendant contends that the trial court erred

in denying his motion to dismiss the charge of first-degree kidnapping for

insufficiency of the evidence. After careful review, we reverse defendant’s first-degree

kidnapping conviction. STATE V. ANDREWS

Opinion of the Court

I. Factual Background and Procedural History

In September 2019, a silver 2008 Toyota Corolla belonging to Jessica Stewart’s

(Stewart) mother was stolen. On 13 September 2019, defendant met up with Stewart

and two other individuals to locate the missing vehicle. Later that evening, nineteen-

year-old Samuel Wyre (victim) was driving his vehicle, a 2004 Toyota Corolla (victim’s

vehicle), alone at approximately 3:30 a.m. when a van, driven by defendant, pulled in

front of the victim, turned right into a parking lot, and then pulled back onto the road

behind the victim’s vehicle. The victim slowed down, and defendant exited the van,

approached the victim’s vehicle with a firearm in hand, and told the victim to “[g]et

the f[***] out of the car.” The victim did not comply with defendant’s demand and

began to drive away. At this point, defendant returned to the van and continued

pursuit of the victim’s vehicle at a high speed, between ninety and one-hundred miles

per hour. During the pursuit, the victim heard gunshots coming from the van as

defendant held a shotgun out the driver’s window and fired in the direction of the

victim’s vehicle.

As the pursuit continued, the van pulled alongside the victim’s vehicle, driving

in the opposite direction of traffic,1 when the victim observed the barrel of a gun

pointed at him out of the van’s window. The victim slammed on his brakes, executed

a “K-point turn” and began driving in the opposite direction. Initially, the victim saw

1 The victim testified that the road was a two-lane road, with “just one [lane] for each direction.”

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the van continue in pursuit, testifying that he “saw sparks coming out of the van

brakes[,]” but eventually the lights from the van were no longer visible behind him.

Shortly thereafter, the victim pulled over at a gas station where he engaged with law

enforcement officers and informed them of what had just occurred.

On 8 June 2020, defendant was indicted upon a true bill of indictment for

attempting to discharge a firearm into an occupied vehicle, attempted robbery with a

firearm, and first-degree kidnapping using a firearm. The matter came on for trial on

3 January 2023 in Davie County Superior Court. On 6 January 2023, the jury

returned guilty verdicts against defendant as to all three alleged offenses, and by

judgments entered that same day, defendant was sentenced to an active sentence of

forty-four to sixty-five months in the custody of the North Carolina Division of Adult

Correction, a consecutive sentence of 111 months to 146 months for attempted

robbery with a firearm, and a third consecutive sentence of 199 months to 251 months

for first-degree kidnapping. Defendant entered timely oral notice of appeal at the end

of his trial. From these judgments, defendant appeals.

II. Discussion

On appeal, defendant argues that the trial court “erred by denying the motion

to dismiss the first-degree kidnapping charge” because “the evidence was insufficient

to support a finding of restraint or confinement beyond that inherent in the charges

for attempted robbery with a firearm and attempted discharge of a firearm into an

occupied vehicle.” We agree.

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A. Standard of Review

A motion to dismiss on the ground of insufficiency of the evidence “presents a

question of law and is reviewed de novo on appeal.” State v. Norton, 213 N.C. App.

75, 78, 712 S.E.2d 387, 390 (2011) (italics omitted). “The question for this Court is

whether there is substantial evidence of each essential element of the offense charged

and of the defendant being the perpetrator of the offense.” Id. “Substantial evidence

is such relevant evidence as a reasonable mind might accept as adequate to support

a conclusion.” Id. (citation omitted). “In making its determination, the trial court

must consider all evidence admitted, whether competent or incompetent, in the light

most favorable to the State, giving the State the benefit of every reasonable inference

and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451

S.E.2d 211, 223 (1994) (citation omitted).

B. First-Degree Kidnapping

Kidnapping is defined by our legislature, in pertinent part as:

(a) [a]ny person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person . . . shall be guilty of kidnapping if such confinement, restraint, or removal is for the purpose of: .... (2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; or

(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person . . . .

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N.C. Gen. Stat. § 14-39(a)(2)–(3) (2023). A kidnapping where “the person kidnapped

was not released by the defendant in a safe place or had been seriously injured or

sexually assaulted” constitutes a first-degree kidnapping. Id. § 14-39(b).

However, because some degree of restraint or confinement is inherent in

felonies such as robbery with a firearm, kidnapping charges can implicate double

jeopardy concerns where the restraint is the basis for both the underlying felony and

the kidnapping. See State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978)

(“[M]ak[ing] 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 . . . would violate the constitutional prohibition against double

jeopardy.”). Therefore, in order to avoid running afoul of double jeopardy violations

in seeking convictions for kidnapping, “the restraint, which constitutes the

kidnapping, [requires] a separate, complete act, independent of and apart from the

other felony.” Id. at 524, 243 S.E.2d at 352.

Our precedent is illustrative in applying this principle. In State v. Irwin, the

Supreme Court of North Carolina reversed the kidnapping conviction of a defendant

who forced the victim, at knifepoint, to the rear of a convenience store, so that the

victim could open a safe containing prescription drugs. 304 N.C. 93, 103, 282 S.E.2d

439, 446 (1981). In reversing the kidnapping conviction, the Court reasoned that the

victim’s “removal to the back of the store was an inherent and integral part of the

attempted robbery” because “to accomplish the defendant’s objective of obtaining

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drugs it was necessary that . . . [the victim] go to the back of the store . . . and open

the safe.” Id.

On the other hand, in State v. China, our Supreme Court affirmed the

defendant’s conviction for kidnapping. 370 N.C. 627, 628, 811 S.E.2d 145, 146 (2018).

There, the defendant and his accomplice broke into the home of the defendant’s ex-

girlfriend and began striking his ex-girlfriend’s new partner (victim) in the face. Id.

at 629, 811 S.E.2d at 146. Once the victim was incapacitated, the defendant sexually

assaulted him. Id. After the sexual assault, the defendant dragged the victim off the

bed, causing the victim’s head to hit the floor, the defendant and his accomplice then

began kicking and stomping the victim. Id. at 629, 811 S.E.2d at 146–47. In upholding

the defendant’s conviction for kidnapping, our Supreme Court reasoned that the

defendant had exercised all necessary force to commit the sexual assault when he

struck the victim until he was incapacitated. Id. at 635–36, 811 S.E.2d at 150–51.

The Court concluded that it was the defendant’s actions after the sexual assault had

ended—dragging the victim off the bed causing his head to hit the floor and kicking

and stomping him—that constituted the “additional restraint” necessary to support

the conviction for kidnapping. Id. at 636, 811 S.E.2d at 151.

Finally, State v. Allred provides a stark illustration of these principles in

practice. There, the defendant was convicted of three separate counts of kidnapping

three separate individuals. 131 N.C. App. 11, 13, 505 S.E.2d 153, 154 (1998). In that

case, the defendant and his accomplice entered the living room of a home, where two

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of the three victims were gathered. Id. The defendant robbed the two victims in the

living room at gunpoint; while doing so, the defendant’s accomplice kicked in a

separate door and discovered the third victim, who was sleeping. Id. at 13, 505 S.E.2d

at 155. The third victim was then, “grabbed . . . by the collar . . . dragged . . . into the

living room, and pushed . . . down on the couch.” Id.

This Court vacated the defendant’s kidnapping convictions as to the first two

victims who were initially in the living room, reasoning that, “the restraint used

against these victims was an inherent part of the armed robbery and did not expose

them to any greater danger than that required to complete the robbery.” Id. at 20,

505 S.E.2d at 159. However, this Court affirmed the defendant’s kidnapping

conviction as to the third victim who was forced from the bedroom and into the living

room; reasoning that, “this removal was not an integral part of [the] robbery

committed . . . but a separate course of conduct designed to prevent [the victim] from

hindering [the] defendant . . . from perpetrating the robberies against the other

occupants.” Id. at 21, 505 S.E.2d at 159.

Here, upon our careful review of the caselaw on this subject, we conclude that

the factual scenario presented in the present case is more analogous to Irwin than to

China; the high-speed pursuit of the victim was not “a separate, complete act,

independent of and apart from the” felony of attempted armed robbery, but “an

inherent, inevitable feature of” the attempted armed robbery, and if we were to affirm

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defendant’s conviction for kidnapping we “would violate the constitutional prohibition

against double jeopardy.” Fulcher, 294 N.C. at 523–24, 243 S.E.2d at 351–52.

As defendant notes in his appellate brief, “[t]he van’s pursuit and stopping of

[the victim]’s car was inherent and necessary to the attempted armed robbery”; for

defendant to be successful in the armed robbery, he would have needed to “tak[e] the

[vehicle] away from [the victim], . . . at the very least, to stop the car, remove [the

victim] from the driver’s seat, and then take possession of the car and its keys by

threat of the firearm.”

Indeed, defendant’s pursuit of the victim by vehicle with a firearm was “an

inherent, inevitable feature of another felony[,]” armed robbery, whereby defendant

had to remove the victim from the victim’s vehicle at gunpoint and take the vehicle

to accomplish the robbery; the ensuing pursuit to accomplish the armed robbery does

not constitute “a separate, complete act, independent of and apart from the other

felony.” Id. In the instant case—like the defendant who led the victim at gunpoint to

open the safe in Irwin, and the defendant who restrained the two victims initially in

the living room in Allred——defendant’s pursuit of the victim’s vehicle was part of

the “necessary restraint” to accomplish defendant’s objective of taking the victim’s

vehicle from the victim at gunpoint.

For this reason, we conclude that the trial court erred in denying the motion

to dismiss the charge of first-degree kidnapping, because, viewing the evidence in the

light most favorable to the State, there was insufficient evidence of a separate,

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complete restraint or confinement, independent of and apart from the attempted

armed robbery, as is necessary to support a conviction for first-degree kidnapping

without violating the constitutional prohibition against double jeopardy.

III. Conclusion

We conclude that the trial court erred in denying defendant’s motion to dismiss

the charge of first-degree kidnapping because the State did not meet its burden of

establishing each essential element of the offense charged. For this reason, we reverse

defendant’s conviction for first-degree kidnapping.

REVERSED IN PART.

Judges COLLINS and HAMPSON concur.

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