State v. Groat

• Court: Court of Appeals of North Carolina
• Decided: May 7, 2024
• Docket: 23-703
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-703

Filed 7 May 2024

Jackson County, Nos. 20 CRS 226–27, 50134–35, 50563–64; 21 CRS 58, 574

STATE OF NORTH CAROLINA

v.

KENNETH DAVID GROAT, Defendant.

Appeal by Defendant from judgment entered 18 October 2022 by Judge

William H. Coward in Jackson County Superior Court. Heard in the Court of Appeals

20 March 2024.

Attorney General Joshua H. Stein, by Assistant Attorney General Caden W. Hayes, for the State.

New Hanover County Public Defender, by Assistant Public Defender Max E. Ashworth, III, for Defendant-Appellant.

CARPENTER, Judge.

Kenneth David Groat (“Defendant”) appeals from judgment after a jury

convicted him of one count of attempted first-degree kidnapping, one count of

statutory sex offense with a child fifteen years of age or younger, three counts of

indecent liberties with a child, and three counts of statutory rape of a child fifteen

years of age or younger. On appeal, Defendant argues the trial court erred by: (1)

joining his charges for one trial; and (2) denying his motion to dismiss his attempted

first-degree kidnapping charge. After careful review, we discern no error. STATE V. GROAT

Opinion of the Court

I. Factual & Procedural Background

On 18 June 2020, a grand jury indicted Defendant with two counts of indecent

liberties with a child, one count of statutory sex offense with a child fifteen years of

age or younger, and one count of statutory rape of a child fifteen years of age or

younger. On 28 January 2021, a grand jury indicted Defendant with attempted first-

degree kidnapping. On 15 March 2021, a grand jury indicted Defendant with one

count of statutory rape of a child fifteen years of age or younger and one count of

indecent liberties with a child. And lastly, on 15 November 2021, a grand jury

indicted Defendant with an additional count of statutory rape of a child fifteen years

of age or younger.

Before trial, the State filed a motion to join all of Defendant’s charges for one

trial, and Defendant filed a motion to sever, objecting to the joinder of his charges.

The trial court granted the State’s motion and denied Defendant’s. Defendant did

not renew his joinder objection at trial.

Trial evidence tended to show the following. In 2011, Defendant began dating

the mother of A.C. and T.Q.1 Defendant moved in with, and eventually married, A.C.

and T.Q.’s mother.

A.C. was in the fifth grade during the following events. One night, Defendant

laid “next to [A.C.]” and put “his hands in [A.C.’s pants].” Defendant asked A.C. to

1 We use pseudonyms to protect the identity of the juveniles. See N.C. R. App. P. 42(b).

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“get on top of [Defendant] and jump.” On several other occasions, Defendant would

“stick his hands in [A.C.’s] bra” and put his “mouth . . . on [A.C.’s] boobs” while she

was sleeping. Defendant also digitally penetrated A.C.

T.Q. was twelve years old during the following events. One night, Defendant

touched T.Q. “up [her] leg and . . . on [her] stomach and [her] arms. And then [she]

saw him pull out his phone, and he lifted [her] pants and underwear and took a photo

of [her].” Days later, Defendant again “touch[ed T.Q.’s] arms, touch[ed her] legs[,]

and . . . touch[ed her] breasts[,] lifting up [her] pants and underwear to look at

everything.” Defendant eventually started “try[ing] to have penetrative sex with

[T.Q.]”

When T.Q. was thirteen years old, Defendant impregnated her. To cover up

the abuse, Defendant convinced T.Q. to say that she “snuck off and had sex with some

guy at [a] football game, and then [she] just became pregnant.” T.Q. aborted the

unborn child. Undeterred, Defendant continued to have sex with T.Q.

Defendant threatened to kill himself if T.Q. reported the abuse. He also

threatened to kill T.Q. “so [they could] be together forever.” Defendant also told T.Q.

that if she said anything, “he would kidnap [T.Q.,] . . . go to a motel room, and then .

. . commit suicide together.”

On 20 January 2020, police arrested Defendant for the above abuse. Defendant

posted bond and was released. As a condition of his bond, Defendant had to avoid

any “contact w[ith] any minor under [the] age of sixteen” and “reside with [his]

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parents in Michigan while on release.” Nonetheless, on 21 May 2020, Defendant

texted T.Q. after his release, and T.Q. notified the police. The police then instructed

T.Q. to ask Defendant to meet her at a Sonic restaurant near T.Q.’s work, in Sylva,

North Carolina.

On 22 May 2020, police officers observed Defendant, in his car, parked “in the

middle of the [Sonic] drive area facing [T.Q.’s workplace.]” The officers arrested

Defendant. During the subsequent search of Defendant’s car, officers found the

following: binoculars, two rolls of duct tape, pepper spray, a pocketknife, two cell

phones, a .22-caliber pistol, .22-caliber ammunition, a 40-pack of bottled water, a 15-

pack of granola bars, two five-gallon jugs of gasoline, and a recent receipt for cable

ties.

On 18 October 2022, the jury convicted Defendant of one count of attempted

first-degree kidnapping, one count of statutory sex offense with a child fifteen years

of age or younger, three counts of indecent liberties with a child, and three counts of

statutory rape of a child fifteen years of age or younger. The trial court sentenced

Defendant to between 1,072 and 1,616 months of imprisonment. On 1 November

2022, Defendant filed a written notice of appeal.

II. Jurisdiction

This Court has jurisdiction under N.C. Gen. Stat. § 7A-27(b)(1) (2023).

III. Issues

The issues on appeal are whether the trial court erred by: (1) joining

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Defendant’s charges for a single trial; and (2) denying Defendant’s motion to dismiss

his attempted first-degree kidnapping charge.

IV. Analysis

A. Joinder of Charges for One Trial

Defendant first argues that the trial court erred by joining his charges for one

trial. We conclude that Defendant waived this argument.

In a criminal case, the State may join multiple charges to be adjudicated in one

trial. See State v. Bracey, 303 N.C. 112, 116–17, 277 S.E.2d 390, 393–94 (1981). If

the defendant believes the joinder is unfair, however, he may move to sever the

charges. See N.C. Gen. Stat. § 15A-927(a)(1) (2023).

As a general rule concerning appellate review, the appellant must raise the

issue at trial before we can consider it. See, e.g., Regions Bank v. Baxley Com. Props.,

LLC, 206 N.C. App. 293, 298–99, 697 S.E.2d 417, 421 (2010) (citing N.C. R. App. P.

10(b)(1)). But motions to sever have a higher preservation hurdle: A motion to sever

offenses must be made before trial, N.C. Gen. Stat. § 15A-927(a)(1), and if the trial

court denies the motion, the “right to severance is waived by failure to renew the

motion” at trial, id. § 15A-927(a)(2).

Concerning waiver of severance arguments, some of our caselaw appears to

conflict with decisions of the North Carolina Supreme Court. Compare State v. Silva,

304 N.C. 122, 128, 282 S.E.2d 449, 453 (1981) (“Defendant here moved to sever prior

to trial but did not renew that motion at the close of all evidence; therefore, he has

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waived any right to severance, [N.C. Gen. Stat.] § 15A-927(a)(2).”) with State v. Wood,

185 N.C. App. 227, 231, 647 S.E.2d 679, 683 (2007) (reviewing the trial court’s

severance denial for abuse of discretion, despite the defendant’s failure to renew his

severance motion at trial).

We, however, cannot overrule our state’s highest court. See Dunn v. Pate, 334

N.C. 115, 118, 431 S.E.2d 178, 180 (1993). Accordingly, we follow Silva, not Wood.

See Dunn, 334 N.C. at 118, 431 S.E.2d at 180. And tracking nicely with the text of

section 15A-927, the Court in Silva held that a defendant waives his severance

arguments by failing to renew his severance motion at trial. Silva, 304 N.C. at 128,

282 S.E.2d at 453.

Here, Defendant moved pretrial to sever his charges, but he failed to renew his

severance argument at trial. Therefore, Defendant waived his severance argument,

and we decline to review the trial court’s decision to join Defendant’s charges. See

N.C. Gen. Stat. § 15A-927(a)(2); Silva, 304 N.C. at 128, 282 S.E.2d at 453.

B. Motion to Dismiss

Next, Defendant argues that the trial court erred by denying his motion to

dismiss his attempted first-degree kidnapping charge. After careful review, we

disagree.

We review a denial of a motion to dismiss de novo. State v. Smith, 186 N.C.

App. 57, 62, 650 S.E.2d 29, 33 (2007). Under a de novo review, this Court “‘considers

the matter anew and freely substitutes its own judgment’ for that of the lower

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tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008)

(quoting In re Greens of Pine Glen, Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316,

319 (2003)).

“Upon defendant’s motion for dismissal, the question for the Court is whether

there is substantial evidence (1) of each essential element of the offense charged, or

of a lesser offense included therein, and (2) of defendant’s being the perpetrator of

such offense. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373,

378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d

914, 918 (1993)). “Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71,

78, 265 S.E.2d 164, 169 (1980).

In evaluating the sufficiency of the evidence concerning a motion to dismiss,

the evidence must be considered “in the light most favorable to the State; the State

is entitled to every reasonable intendment and every reasonable inference to be

drawn therefrom . . . .” State v. Winkler, 368 N.C. 572, 574–75, 780 S.E.2d 824, 826

(2015) (quoting State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)).

“Contradictions and discrepancies do not warrant dismissal of the case; rather, they

are for the jury to resolve. Defendant’s evidence, unless favorable to the State, is not

to be taken into consideration.” State v. Agustin, 229 N.C. App. 240, 242, 747 S.E.2d

316, 318 (2013) (quoting State v. Franklin, 327 N.C. 162, 172, 393 S.E.2d 781, 787

(1990)).

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“An attempted crime is an intentional ‘overt act’ done for the purpose of

committing a crime but falling short of the completed crime.” State v. Broome, 136

N.C. App. 82, 87, 523 S.E.2d 448, 453 (1999) (citing State v. Collins, 334 N.C. 54, 60,

431 S.E.2d 188, 192 (1982)). First-degree kidnapping requires: (1) confining,

restraining, or removing from one place to another; (2) a nonconsenting person who

is sixteen years or older; (3) to facilitate a felony; and (4) not releasing the person in

a safe place, seriously injuring the person, or sexually assaulting the person. See

State v. Oxendine, 150 N.C. App. 670, 675, 564 S.E.2d 561, 565 (2002).

Here, the State offered the following trial testimony. Defendant threatened to

kill T.Q. “so [they could] be together forever.” Defendant also told T.Q. that if she

said anything, “he would kidnap [T.Q.,] . . . go to a motel room, and then . . . commit

suicide together.”

Further, police officers arrested Defendant outside of T.Q.’s workplace. And

during the subsequent search of Defendant’s car, officers found binoculars, two rolls

of duct tape, pepper spray, a pocketknife, two cell phones, a .22-caliber pistol, .22-

caliber ammunition, a 40-pack of bottled water, a 15-pack of granola bars, two five-

gallon jugs of gasoline, and a recent receipt for cable ties.

First, Defendant does not contest T.Q.’s age as of 22 May 2020, and testimony

shows that T.Q. did not consent to go anywhere with Defendant, as she cooperated

with police to apprehend him. Second, testimony that Defendant parked and waited

outside of T.Q.’s workplace is evidence that Defendant targeted T.Q. Third, the duct

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tape found in Defendant’s vehicle is evidence that Defendant intended to confine or

restrain T.Q. Fourth, testimony that Defendant previously stated he wanted to

kidnap T.Q. so they could “commit suicide together”—coupled with the seizure of,

among other things, a handgun and a knife from Defendant’s car—is evidence that

Defendant intended to commit a felony by killing T.Q. And finally, testimony that

Defendant parked and waited outside of T.Q.’s workplace is evidence of an “‘overt act’

done for the purpose of” kidnapping T.Q. See Broome, 136 N.C. App. at 87, 523 S.E.2d

at 453.

In sum, the above-mentioned evidence is substantial concerning each element

of attempted first-degree kidnapping because a reasonable jury could accept it as

“adequate to support a conclusion” that Defendant attempted to kidnap T.Q. See

Smith, 300 N.C. at 78, 265 S.E.2d at 169; Oxendine, 150 N.C. App. at 675, 564 S.E.2d

at 565; Broome, 136 N.C. App. at 87, 523 S.E.2d at 453. Accordingly, the trial court

did not err by denying Defendant’s motion to dismiss his attempted first-degree

kidnapping charge. See Fritsch, 351 N.C. at 378, 526 S.E.2d at 455.

V. Conclusion

We conclude that Defendant waived his severance argument by failing to

renew it at trial, and the trial court did not err by declining to dismiss Defendant’s

attempted first-degree kidnapping charge.

NO ERROR.

Judges TYSON and STADING concur.

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