State v. Bonilla. (Lawyers Weekly No. 11-07-0152, 15 pp.) (Wanda G. Bryant, J.) Appealed from Harnett County Superior Court. (R. Allen Baddour Jr., J.) N.C. App. Click here for the full text of the opinion.
Holding: Where defendant beat, bound, and sexually assaulted the kidnap victim, the jury could find that defendant intended to terrorize the victim.
We find no error in defendant’s convictions of first-degree kidnapping and first-degree murder.
The evidence showed that defendant beat and kicked Alvarez, the kidnap victim, repeatedly while wrestling him to the floor. Defendant bound Alvarez’s hands and feet and placed a rag in his mouth; because of the rag, Alvarez could no longer call for help. Both defendant and his accomplice then threatened to kill Alvarez.
Defendant pulled Alvarez’s pants and underwear down, and the accomplice forced a bottle into his rectum. At trial, Alvarez testified that he thought he was going to die.
In the light most favorable to the state, the evidence is sufficient to establish some high degree of fear, intense fright, or apprehension.
Defendant also argues that there was insufficient evidence to establish he kidnapped Alvarez for “the purpose of … doing serious bodily harm to him.”
However, defendant concedes that “in the light most favorable to the State it appears that the purpose of confining and restraining [Alvarez] was to sexually assault him.” Our Supreme Court has previously upheld the denial of a motion to dismiss a charge of kidnapping for the purpose of doing “serious bodily harm” where the victim suffered from a sexual assault. State v. Richardson, 342 N.C. 772, 467 S.E.2d 685 (1996).
We uphold the trial court’s denial of defendant’s motion to dismiss the charge of kidnapping.
The evidence showed that defendant and his accomplice knocked Cortes, the murder victim, to the floor, where he was kicked in the stomach repeatedly, until defendant and the accomplice carried him into a bedroom, where his deceased body was later found.
Associate Chief Medical Examiner Dr. Robert L. Thompson noted, “The legs … and hands, legs and arms were behind the back, and the body was tied in a ‘hog-tied’ fashion.”
The body exhibited small lacerations to the lips and small abrasions to both the right and left side of the face as well as the neck. There were also abrasions in the chest and abdomen area, which were consistent with injuries inflicted during a struggle. Lacerations to Cortes’ right hand were consistent with defensive wounds. In Cortes’ mouth were two portions of tissue paper.
Dr. Thompson performed an internal examination of the body and discovered a fracture in the thoracic spine, caused by severe arching of the back. Due to the fracture, Cortes “would have been paralyzed in the lower part of his body.” Dr. Thompson testified, “The cause of death of Mr. [Cortes] was a combination of suffocation and strangulation, with a contributing factor being the fracture of the thoracic spine.”
We hold that there is ample evidence to support the trial court’s denial of defendant’s motion to dismiss the charge of kidnapping Cortes where there was sufficient evidence to show that defendant’s purpose was to terrorize and do serious bodily harm.
These facts, indicating that the manner of death was a result of the intentional acts of beating, suffocating, and binding the victim so tightly as to break his spine, were also sufficient to show intent to kill.
Before exiting the apartment, defendant and his accomplice left Cortes and Alvarez bound with cords, placed a two-by-four across the inside of the apartment door (hindering access from the outside), and exited the apartment through a window. After taking hours to free himself, Alvarez had to remove the two-by-four in order to exit.
Also, despite the fact that defendant lived with Cortes, there was no indication he ever returned to the apartment. Although a warrant for defendant’s arrest was issued immediately, 10 years passed before defendant was extradited from Texas.
We hold that the evidence presented was sufficient to support the jury instruction on flight, since it showed that defendant fled the scene after commission of the crime and took steps to avoid apprehension.
Alvarez testified that defendant and his accomplice, after tying his hands and feet, shoved a rag into his mouth, pulled his pants and underwear down, and inserted a bottle into his rectum. “I thought that it would probably be left inside, or that I was going to die or something.” Later, an emergency room nurse examined Alvarez and observed a tear in his anal wall accompanied by “serious drainage.”
The trial court did not err in instructing the jury that it could consider whether or not the use of the bottle constituted a deadly weapon during the commission of the sexual offense.