IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-865
Filed 21 November 2023
Durham County, Nos. 20 CRS 50737-39, 20 CRS 590
STATE OF NORTH CAROLINA
v.
DOMINIQUE BUCK TUCKER
Appeal by Defendant from judgments entered 16 November 2021 by Judge
David T. Lambeth, Jr., in Durham County Superior Court. Heard in the Court of
Appeals 6 September 2023.
Attorney General Joshua H. Stein, by Assistant General Counsel South A. Moore and Solicitor General Fellow James W. Whalen, for the State.
Kimberly P. Hoppin, for defendant.
WOOD, Judge.
Dominique Tucker (“Defendant”) appeals the trial court’s entry of three
consecutive terms of imprisonment for a total of 185-253 months for first-degree
kidnapping, three counts of assault, and interfering with emergency communications.
After careful review of the record and applicable law, we determine Defendant’s
preparation of his case was not irreparably prejudiced by his pretrial detention and
Defendant received a fair trial, free from prejudicial error.
I. Factual and Procedural History STATE V. TUCKER
Opinion of the Court
Enomwoyi Moser (“Enomwoyi”) lived in her mother Cynthia Moser’s
(“Cynthia”) apartment in Durham with Cynthia and her grandson, K.P. Enomwoyi
met Dominique Tucker (“Defendant’) at church. Enomwoyi knew Defendant was
married, and initially they were just friends. Eventually their relationship became
more serious, and they began a physical relationship. Defendant came to live with
Enomwoyi and Cynthia at their apartment because he needed an address change.
Enomwoyi told Defendant that they needed to start to do “what’s right” and stop
“sleeping with each other under” the same roof. Refraining from having sex became
an issue in their relationship.
Their relationship began to disintegrate in January 2020. Enomwoyi
discovered Defendant had been handling her gun, and she did not approve because
she knew he was a felon. Enomwoyi also discovered she had trichomoniasis, a
sexually transmitted disease, and was very angry. She confronted Defendant about
it, but he told her he “didn’t catch anything[.]” Their relationship continued to
deteriorate.
During the last week of January, Enomwoyi saw Defendant put a gun into his
coat pocket after checking to make sure the magazine was in the gun. She told him
he needed to get the gun out of Cynthia’s apartment. Defendant denied having a gun.
After this incident, the couple had “no good days.”
On 29 January 2020, Enomwoyi returned home from work after 8:30 p.m. K.P.
was asleep in Enomwoyi’s bedroom, and Defendant and Cynthia were watching
-2- STATE V. TUCKER
television in Cynthia’s room. As Enomwoyi feared would happen, she and Defendant
started arguing. When Enomwoyi started to collect a blanket and pillow for
Defendant to sleep in the living room, “chaos” erupted as Defendant began bringing
up all the arguments they had been having.
While the couple were in the living room, Defendant head butted Enomwoyi by
hitting his forehead to her forehead. Enomwoyi told Defendant if he put his hands
on her again, she would call the police. The strike was very painful and left her dizzy
and confused.
Enomwoyi then walked into the bedroom where K.P. was sleeping to make sure
he was still asleep. Defendant followed behind her, “ranting and raging.” After
Enomwoyi again threatened to call the police, Defendant told her he would give her
a reason to call the police. As Defendant “was standing behind [Enomwoyi] in [her]
room by the door,” he head butted her again, and she “went down.” While Enomwoyi
was down on the ground, Defendant kept punching her and started kicking her.
During this beating, Enomwoyi shouted for Cynthia to call the police.
Cynthia heard Enomwoyi calling for her to call the police. Cynthia entered the
room, telling Defendant, “don’t hit her no more, don’t put your hands on her.”
Defendant turned around and hit Cynthia, busting her lip.
Defendant then “went [back] into the bedroom” and resumed beating
Enomwoyi. Enomwoyi again called out for Cynthia to call the police, but Defendant
-3- STATE V. TUCKER
took Cynthia’s phone away and threw it. Cynthia retrieved her phone and called the
police. She then went outside to try to get help.
Enomwoyi tried escaping the attack by crawling out of the room, but Defendant
continued kicking her until he had kicked her back into the room. Enomwoyi wanted
to get out of the apartment out of concern for K.P. and Cynthia, because she did not
know if he might turn his attention to them, but Defendant blocked the door in front
of her.
At some point, Enomwoyi was able to get up, but Defendant, who was behind
her, snatched her back into the room by her hair. Enomwoyi had a hair weave in,
and Defendant snatched it all off making her feel like she “was being skinned.” He
slung her by her ponytail back into the room, and she fell over the bed.
Defendant then began choking Enomwoyi, causing her not to be able to
breathe. Defendant had a chokehold around Enomwoyi’s neck, and she pleaded for
her life. Enomwoyi seemingly blacked out at that point because she could not see or
hear anything. When Enomwoyi regained consciousness, she noticed for the first
time that K.P. had awakened and was watching what was happening. She did not
know how long K.P. had been awake or watching. Enomwoyi grabbed K.P. and
cradled him.
Defendant returned to the room and began punching Enomwoyi once again
while she cradled K.P. Finally, Defendant left the room. When Enomwoyi saw he
had left, she jumped up, closed the door, and locked it. Defendant once more returned
-4- STATE V. TUCKER
and started kicking the door. Enomwoyi hid K.P. in the closet to protect him, and felt
she had to remove herself from the situation.
While Defendant continued kicking the door, Enomwoyi jumped out of the
third floor bedroom window, landing on the ground on her right side back and hip.
She believed she could not have escaped the room any other way that would not have
caused her death. Enomwoyi then saw Defendant looking out of a window and was
afraid of being attacked again. She managed to get up and hide. She then heard
Defendant start his car and heard what she believed were two gunshots before seeing
Defendant pull out of the parking lot and leave.
Enomwoyi suffered a range of injuries from Defendant’s attack. She
complained of “severe hip pain and pain all over her face” to an EMS responder. Her
face was very swollen, and an eye was swollen shut. There was blood all over her face
and a significant laceration under an eye. Enomwoyi was transported to the hospital
in an ambulance. Enomwoyi suffered a fractured eye socket fracture and also
suffered vision issues, such as a spray of light in her peripheral vision. Pressure in
her eye socket prevented her from wearing her contacts. At the time of trial,
Enomwoyi continued to experience stabbing pains in her eye with varying degrees of
severity, memory loss, headaches, migraines, fatigue, weakness, and struggling to
think and focus. She continues to have difficulty eating because of a throat injury
due to the choking. As a result of jumping out the window, Enomwoyi has hip issues
and will need a hip replacement.
-5- STATE V. TUCKER
Defendant was arrested the same night of the assault. An officer attempted to
stop Defendant for speeding and driving with a missing headlight; however,
Defendant did not pull over but instead sped away. After a high-speed pursuit
involving multiple officers, Defendant pulled into a driveway, and the officers
conducted a “high-risk” apprehension. The arresting officers were unaware that a
“bolo” (be on the lookout) bulletin had been issued for Defendant for his assaults upon
Enomwoyi and Cynthia.
On 30 January 2020, Defendant was arrested on the charges stemming from
the assaults, and the magistrate set his bond at $200,000.00. Defendant did not post
bond, remaining in custody. On 16 March 2020, a grand jury indicted him on the
charges of possession of a firearm by a felon, first-degree kidnapping of Enomwoyi,
assault by pointing a gun, assault by strangulation, assault inflicting serious bodily
injury, assault in the presence of a minor, assault on a female, and interference with
emergency communication. On 17 March 2020, Defendant was served the
indictments while in custody. A bond of $50,000.00 was set for the additional charge
of possession of a firearm by a felon. Because the magistrate determined the
kidnapping charge involved an act of domestic violence, the magistrate did not set
bond on the kidnapping charge and held the matter over for a judge to set the
conditions of pretrial release pursuant to N.C. Gen. Stat. § 15A-534.1. Specifically,
the magistrate ordered the State to produce Defendant before the next session of
court held in Durham County or, if no session were held in the next forty-eight hours,
-6- STATE V. TUCKER
to produce him before a magistrate in forty-eight hours to determine the conditions
of pretrial release. The State failed to comply with this order, and Defendant was not
afforded the required pretrial detention hearing on the kidnapping charge.
Defendant did not post bond on any of the charges and remained in custody.
On 14 September 2020, Defendant filed a motion to dismiss the kidnapping
charge, arguing his “arrest” and detention since 17 March 2020 without a pretrial
release hearing for the kidnapping charge violated N.C. Gen. Stat. § 15A-534.1 and
required its dismissal. The following day, the trial court consolidated Defendant’s
charges into one set of pretrial release conditions, setting a combined bond of
$250,000.00. Defendant did not post bond and remained in custody. On 12 October
2020, the trial court denied Defendant’s motion to dismiss for failure to meet the
requirements of N.C. Gen. Stat. § 15A-954(a)(4) (2022).
Defendant waived his right to a jury trial and a bench trial was held 8-16
November 2021. Defendant renewed his motion to dismiss the kidnapping charge at
the start of the trial. The trial court denied the motion prior to the start of trial. The
jury found Defendant not guilty of possession of a firearm by a felon, and guilty of
first-degree kidnapping, assault by strangulation, assault inflicting serious bodily
injury, assault on a female, and interfering with emergency communications. At the
close of the State’s evidence, at the close of all the evidence, and after the verdict,
Defendant made motions to dismiss all the charges. The trial court denied each
motion.
-7- STATE V. TUCKER
Following the verdict, the trial court imposed a total of three sentences to run
consecutively. The trial court consolidated the charges of first-degree kidnapping and
interference with emergency communication and sentenced Defendant to 130-168
months imprisonment. The trial court consolidated the charges of assault inflicting
serious bodily injury, assault in the presence of a minor, and assault on a female and
sentenced Defendant to a consecutive term of imprisonment of 36-53 months. The
trial court sentenced Defendant to a third consecutive term of imprisonment of 19-32
months for the assault by strangulation charge. Defendant received credit for time
served prior to trial.
Defendant gave oral notice of appeal in open court.
II. Analysis
Defendant raises four arguments on appeal: (1) his kidnapping charge should
be dismissed because the State failed to hold a pretrial release hearing related to that
charge in violation of N.C. Gen. Stat. § 15A-534.1; (2) the trial court improperly
convicted him of multiple counts of assault in violation of the prohibition against
double jeopardy; (3) N.C. Gen. Stat. § 14-32.4 permits his conviction of assault
inflicting serious bodily injury but not conviction of assault by strangulation; and (4)
Defendant’s conviction for kidnapping was not based on sufficient evidence. We
address each argument in turn.
A. Motion to Dismiss the Kidnapping Charge
-8- STATE V. TUCKER
A criminal defendant’s motion to dismiss is reviewed de novo. State v. Golder,
374 N.C. 238, 249-50, 839 S.E.2d 782, 790 (2020). Similarly, whether a “defendant
has met the statutory requirements of N.C. Gen. Stat. § 15A-954(a)(4) and is entitled
to a dismissal of the charge against him is a conclusion of law” reviewed de novo.
State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008).
N.C. Gen. Stat. § 15A-954(a)(4) requires the trial court to dismiss a charge
against a defendant if the trial court determines a “defendant's constitutional rights
have been flagrantly violated and there is such irreparable prejudice to the
defendant's preparation of his case that there is no remedy but to dismiss the
prosecution.” A defendant may demonstrate prejudice by showing he would have
been released earlier had he received a pretrial hearing. See State v. Thompson, 349
N.C. 483, 501, 508 S.E.2d 277, 288 (1998).
For domestic violence crimes, including felonies perpetrated upon a person
with whom the defendant lived, N.C. Gen. Stat. § 15A-534.1 (2022) requires a judge
to hold a pretrial release hearing for the defendant within the first forty-eight hours
from the time of arrest, and if a judge does not do so, then a magistrate must do so at
the end of the forty-eight hour period.
To determine whether a defendant’s pretrial detention violates N.C. Gen. Stat.
§ 15A-534.1, “it is appropriate to examine the importance of the private interest and
the harm to this interest occasioned by delay; the justification offered by the
Government for delay and its relation to the underlying governmental interest; and
-9- STATE V. TUCKER
the likelihood that the interim decision may have been mistaken.” Thompson, 349
N.C. at 499, 508 S.E.2d at 286–87.
Here, Defendant had been detained since 17 March 2020 on the kidnapping
charge without receiving a pretrial release hearing for this charge. Defendant did
not file his motion to dismiss the charge until 14 September 2020, almost six months
later. It was not until after Defendant filed his motion that he received a pretrial
release hearing related to the kidnapping charge.
Defendant has a private interest in liberty, which is a fundamental right. Id.
at 499, 508 S.E.2d at 287. However, the State’s failure to hold a pretrial release
hearing related to the kidnapping charge did not flagrantly violate that right due to
the inadvertence of the State’s mistake as well as the absence of prejudice, as
explained below. N.C. Gen. Stat. § 15A-954(a)(4).
The State admits it failed to hold a pretrial release hearing related to the
kidnapping charge; however, it tries to explain the failure as an inadvertent mishap
due to the significant disruption to our Judicial Branch at the onset of Covid-19.
Indeed, Covid-19 significantly disrupted the operations of the Judicial Branch at the
onset of the pandemic; nevertheless, the failure to conduct a pretrial release hearing
could be a violation of Defendant’s statutory and constitutional rights. Assuming it is
a violation here, we next examine whether the failure to provide a pretrial hearing
was intentional and thus a flagrant violation of Defendant’s constitutional rights.
Here, the State complied with the statutory mandate for all of Defendant’s other
- 10 - STATE V. TUCKER
charges and immediately arranged for a pretrial hearing after being made aware of
the need for one upon the filing of Defendant’s motion. Thus, there is merit to the
State’s contention it unintentionally withheld a timely pretrial release hearing
regarding one of Defendant’s charges. The inadvertence does not excuse the State;
rather, it is relevant to show the absence of a flagrant constitutional violation.
Most compellingly, Defendant cannot show irreparable prejudice to the
preparation of his case such that the trial court would have been required to dismiss
the kidnapping charge. On 17 March 2020, Defendant had not posted the $200,000.00
bond following his 30 January 2020 arrest, so he was still incarcerated when he was
arrested pursuant to the indictments of felon in possession of a firearm and
kidnapping. After he was served these indictments, bond was set at $50,000.00 for
the felon in possession of a firearm charge, and Defendant never posted that bond
either. Therefore, even if the State had held a timely pretrial release hearing on the
kidnapping charge, Defendant would not have been released. Even after the trial
court consolidated Defendant’s charges into a combined bond of $250,000.00 on 15
September 2020, Defendant did not post bond and remained in custody.
Defendant argues his preparation for his case was irreparably prejudiced due
to the State’s failure to comply with N.C. Gen. Stat. § 15A-534.1. Specifically,
Defendant argues it is reasonable to infer the trial court would have found a
mitigating factor that Defendant had a support system in the community, but it did
not because of Defendant’s confinement due to his detainment for the kidnapping
- 11 - STATE V. TUCKER
charge. However, as noted, Defendant would have remained confined had the State
complied with the statute because he never posted bond for any of his criminal
charges. Accordingly, Defendant cannot demonstrate irreparable prejudice to the
preparation for his case. N.C. Gen. Stat. § 15A-954(a)(4).
Finally, we consider the “likelihood that the interim decision may have been
mistaken.” Thompson, 349 N.C. at 499, 508 S.E.2d at 287. We conclude the likelihood
of mistakenly detaining Defendant was low because he already was in custody for
other charges arising out of his assault of Enomwoyi. The indictments on the felon
in possession of a firearm and kidnapping also arose out of the assault on Enomwoyi
and were obtained and served while he was incarcerated on the other charges.
Defendant was ultimately tried, convicted, and sentenced to 185-253 months in
prison, and the trial court gave him credit for the time he spent in custody before
trial. Thus, the record demonstrates Defendant was not mistakenly detained.
B. Multiple Assault Convictions
Defendant next argues there was insufficient evidence to convict him for
multiple counts of assault because his actions constituted one continuous assault.
Defendant further argues, “in addition or in the alternative,” his multiple assault
convictions are not supported by the evidence insofar as the prohibition against
double jeopardy prevents multiple convictions for the same offense. See State v. Ezell,
159 N.C. App. 103, 106, 582 S.E.2d 679, 682 (2003). Indeed, Defendant grounds his
insufficiency of the evidence argument primarily on his double jeopardy argument.
- 12 - STATE V. TUCKER
However, “constitutional questions not raised and passed on by the trial court will
not ordinarily be considered on appeal.” State v. Davis, 364 N.C. 297, 301, 698 S.E.2d
65, 67 (2010) (brackets omitted). Therefore, Defendant requests this Court to exercise
its discretion under N.C. R. App. P. 2 to suspend the rules and reach the merits of
this argument. A defendant must demonstrate manifest injustice as well as merit for
this Court to exercise its discretion as Defendant requests. State v. Ricks, 378 N.C.
737, 738, 862 S.E.2d 835, 837 (2021). For the following reasons, we conclude
Defendant fails to demonstrate manifest injustice and merit, and therefore, we
decline to apply N.C. R. App. P. 2 to address Defendant’s double jeopardy argument.
“Whether the State presented substantial evidence of each essential element
of the offense is a question of law; therefore, we review the denial of a motion to
dismiss de novo.” Golder, 374 N.C. at 250, 839 S.E.2d at 790. “Substantial evidence
is the amount necessary to persuade a rational juror to accept a conclusion.” Id. at
249, 839 S.E.2d at 790. (Brackets and ellipsis omitted). We consider the evidence “in
the light most favorable to the State; the State is entitled to every reasonable
intendment and every reasonable inference to be drawn therefrom.” Id. at 250, 839
S.E.2d at 790.
“In order for a defendant to be charged with multiple counts of assault, there
must be multiple assaults.” State v. Maddox, 159 N.C. App. 127, 132, 583 S.E.2d 601,
604 (2003). “[T]o find [a] defendant guilty of two separate assaults . . . a distinct
interruption” must have occurred between the assaults. State v. Brooks, 138 N.C.
- 13 - STATE V. TUCKER
App. 185, 189, 530 S.E.2d 849, 852 (2000). For example, there must be “an
intervening event, a lapse of time in which a reasonable person may calm down, an
interruption in the momentum of the attack, a change in location, or some other clear
break delineating the end of one assault and the beginning of another.” State v.
Robinson, 381 N.C. 207, 218, 872 S.E.2d 28, 36 (2022). Contrarily, “the fact that a
victim has multiple, distinct injuries alone is not sufficient evidence of a distinct
interruption such that a defendant can be charged with multiple counts of assault.”
Id. at 218, 872 S.E.2d at 36.
Here, Defendant’s second head butting of Enomwoyi followed by his punching
and kicking her constitutes substantial evidence to support the conviction for assault
causing serious bodily injury. This occurred in the bedroom. Second, Defendant’s
hitting Cynthia in the face, leaving her with a busted lip, constitutes substantial
evidence to support the conviction for assault on a female. Third, Defendant “went
into the bedroom” once more to beat Enomwoyi again. Therefore, there was both an
interruption in the momentum of Defendant’s attack on Enomwoyi when he paused
to hit Cynthia and a change in location when Defendant returned to the bedroom to
beat Enomwoyi again. Enomwoyi managed to get up to try to escape, and Defendant
flung her to the bed and strangled her. Accordingly, substantial evidence supports
Defendant’s conviction for assault by strangulation. Fourth, Enomwoyi blacked out,
woke up, and noticed K.P. had woken up. Defendant “came back” into the bedroom
and punched Enomwoyi more, which K.P. witnessed. Therefore, there was both an
- 14 - STATE V. TUCKER
interruption in the momentum of Defendant’s attack during the time Enomwoyi was
blacked out and a change of location when Defendant returned to the bedroom to
punch her. Accordingly, these facts constitute substantial evidence for Defendant’s
conviction of assault in the presence of a minor.
Because sufficient evidence supported each of Defendant’s convictions for
assault, we hold each offense was separate and distinct, and therefore, the trial court
did not err in convicting Defendant of each charge of assault.
We further hold Defendant has failed to show merit in his argument that he
did not commit multiple assaults upon Enomwoyi. Therefore, we decline to apply
N.C. R. App. P. 2 to address Defendant’s argument based on double jeopardy and hold
the trial court did not err in convicting Defendant of numerous assaults because
sufficient evidence supported the multiple convictions.
C. Assault by Strangulation and Assault Inflicting Serious Bodily Injury
Defendant argues under N.C. Gen. Stat. § 14-32.4 (2022), only his conviction
for assault inflicting serious bodily injury may stand, while his conviction for assault
by strangulation must be vacated. This Court has held that whether a defendant’s
convictions violate N.C. Gen. Stat. § 14-32.4 is an issue “of statutory construction”
reviewed de novo. State v. McPhaul, 256 N.C. App. 303, 317, 808 S.E.2d 294, 305
(2017). The State contends this argument was not preserved for appellate review;
however, when the “trial court acts contrary to a statutory mandate, the defendant’s
- 15 - STATE V. TUCKER
right to appeal is preserved despite the defendant’s failure to object during trial.” Id.
at 317, 808 S.E.2d at 305. Thus, we consider Defendant’s argument.
N.C. Gen. Stat. § 14-32.4 provides that a trial court may convict a defendant
for assault inflicting serious bodily injury “[u]nless the conduct is covered under some
other provision of law providing greater punishment[.]” N.C. Gen. Stat. § 14-32.4(a).
Two convictions are error if they are based on the same conduct. State v. Prince, 271
N.C. App. 321, 323, 843 S.E.2d 700, 702 (2020). Therefore, our analysis in the section
above provides the answer here. If “[t]he record does not reveal that there was a
‘distinct interruption’ between two assaults,” only one of the convictions may stand.
Id. at 324, 843 S.E.2d at 703 (quoting Brooks, 138 N.C. App. at 189, 530 S.E.2d at
852).
Here, the initial head butting followed by punching and kicking Enomwoyi
constitute evidence supporting Defendant’s conviction for assault inflicting serious
bodily injury. Before Defendant choked Enomwoyi, he had left the room, even if
momentarily, to hit Cynthia, busting her lip, then returned to the bedroom to beat
Enomwoyi more, pulled her back into the room by her hair, flinging her to her bed as
she attempted to escape, and then choked her to the point of blackout. The evidence
demonstrates an interruption in the momentum of the attack when Defendant
paused to hit Cynthia, as well as a change in the locations of his assaults upon
Enomwoyi when he left the bedroom to do so and then returned to beating and then
choking Enomwoyi. Accordingly, we conclude there was a distinct interruption in the
- 16 - STATE V. TUCKER
assault, and both of Defendant’s convictions must stand. Prince, 271 N.C. App. at
323, 843 S.E.2d at 702; Robinson, 381 N.C. at 218, 872 S.E.2d at 36.
D. Sufficiency of the Evidence for Kidnapping
Finally, Defendant argues the evidence was insufficient for the jury to convict
him of first-degree kidnapping because the act was not independent of the underlying
assault. “Kidnapping is a specific intent crime, and therefore the State must prove
that defendant unlawfully confined, restrained, or removed the victim for one of the
specified purposes outlined in the statute.” State v. Rodriguez, 192 N.C. App. 178,
187, 664 S.E.2d 654, 660 (2008). “[T]he act of kidnapping must be distinct from such
a felony if the perpetrator is to be convicted of both kidnapping and the underlying
felony.” State v. Cole, 199 N.C. App. 151, 157, 681 S.E.2d 423, 428 (2009). N.C. Gen.
Stat. § 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.” State v. Fulcher, 294
N.C. 503, 523, 243 S.E.2d 338, 351 (1978). Notwithstanding, “it is well-established
that two or more criminal offenses may arise from the same course of action.” State
v. Muhammad, 146 N.C. App. 292, 295, 552 S.E.2d 236, 237 (2001). Therefore, “a
conviction for kidnapping does not violate the constitutional prohibition against
double jeopardy where the restraint is used to facilitate the commission of another
felony, provided the restraint is a separate, complete act, independent of and apart
from the other felony.” Id. at 295, 552 S.E.2d at 237.
- 17 - STATE V. TUCKER
For example, in State v. Romero, during the course of an altercation that
occurred inside a home, the victim “fled from inside the home,” the defendant caught
up with her and grabbed her, and “dragged her back inside by her hair.” 164 N.C.
App. 169, 174, 595 S.E.2d 208, 212 (2004). After dragging the victim back inside, the
defendant further assaulted her. Id. at 174–75, 595 S.E.2d 208, 212. The Romero
court concluded: the “defendant chose to drag [the victim] back inside to prevent
others from witnessing him then beat [the victim] with his fists, gun, and belt.
Therefore, . . . the restraint and removal of [the victim] was separate and apart from,
and not an inherent incident of, the commission of the assault with a deadly weapon.”
Id. at 175, 595 S.E.2d at 212 (2004).
Similarly, in State v. Gayton-Barbosa, the defendant committed multiple
assaults on the victim. He kept the victim from leaving her house by repeatedly
striking her with a bat. After she escaped the house, he chased her, grabbed her, and
then shot her. There, the Court found, “Detaining [the victim] in her home and then
again outside was not necessary to effectuate the assaults charged. These acts were
committed ‘separate and apart’ from that which is inherent in the commission of the
other felony.” 197 N.C. App. 129, 140, 676 S.E.2d 586, 593 (2009) (quoting
Fulcher, 294 N.C. at 523, 243 S.E.2d at 351).
Here, as in Romero, Defendant chose to drag Enomwoyi back into the bedroom
by her hair and then choked her. The act of pulling Enomwoyi back into the bedroom
by her hair, ripping it out, was separate and apart from the act of choking her. Also,
- 18 - STATE V. TUCKER
as in Gayton-Barbosa, Defendant’s pulling Enomwoyi back in by her hair, thereby
confining her to the bedroom, was not necessary to Defendant’s assaults. Defendant
could have assaulted or choked Enomwoyi anywhere in the apartment. Therefore,
Defendant’s confinement of Enomwoyi was separate and apart from his subsequent
choking of her. Finally, when Enomwoyi woke up after passing out and locked the
bedroom door, Defendant further confined her when he kicked at the bedroom door.
Such was Enomwoyi’s fear of Defendant that she felt there was no other way to
escape, “[o]ther than dying,” besides jumping out the window to leave the room.
Therefore, Defendant’s confinement of Enomwoyi by pulling her by the hair back into
the bedroom, confining her in there by kicking at the locked door, and forcing her to
escape by jumping from the third floor window, were separate, complete acts apart
from Defendant’s other assaults upon her. Muhammad, 146 N.C. App. at 295, 552
S.E.2d at 237. Accordingly, the trial court did not err by convicting Defendant of
assault and first-degree kidnapping.
III. Conclusion
For the foregoing reasons, we hold Defendant’s preparation of his case was not
irreparably prejudiced by his pretrial detention. Defendant received a fair trial, free
from prejudicial error.
NO ERROR.
Judges GRIFFIN and STADING concur.
- 19 -