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Criminal Practice – Kidnapping – Asportation – Armed Robbery – Home Invasion

State v. Curtis (Lawyers Weekly No. 011-079-16, 24 pp.) (Douglas McCullough, J.) (Robert Hunter Jr., J., dissenting) Appealed from Forsyth County Superior Court (Ronald Spivey, J.) N.C. App.

Holding: After breaking into a home, defendant and his accomplices first robbed or attempted to rob two of the home’s occupants who were downstairs, then the intruders moved these two victims upstairs at gunpoint, where the intruders robbed two more of the home’s occupants. We are not convinced that the removal of the first two victims from downstairs to upstairs was integral to or inherent in the armed robberies.

We find no error in the trial court’s denial of defendant’s motion to dismiss the kidnapping charges against him.

The evidence tends to show that the robberies, or attempted robberies, of Christopher Cowles and Refeigo Pina took place entirely downstairs when the robbers demanded Cowles’ and Pina’s cell phones, to no avail. There is no evidence that any other items were demanded from Cowles or Pina at any other time, and Cowles testified that nothing was taken from his person.

Thus, it is difficult to accept defendant’s argument that the movement of Cowles and Pina was integral to the attempted robberies of Cowles and Pina. In fact, the evidence is clear that defendant and the other intruders entered the residence in search of Justin Collins. In the light most favorable to the state, it appears that the removal of Cowles and Pina from downstairs to upstairs was integral neither to the robberies of them, nor to the robberies of Collins and Megan Martin.

Because nothing further was either sought or taken from Cowles and Pina after they were ordered to give up their cell phones downstairs, it appears the only reason to remove Cowles and Pina to the upstairs was to prevent them from hindering the subsequent robberies of Collins and Martin.

Further, there is no evidence that it was necessary to move Cowles and Pina upstairs to complete the robbery of Collins and Martin. There was no purpose in moving Cowles and Pina upstairs besides preventing them from hindering the robberies of Collins and Martin.

Lastly, we note that the removal of Cowles and Pina upstairs subjected them to greater danger. Although the display of a firearm or threatened use of a firearm does not subject the victims to greater danger than that inherent in an armed robbery, the other intruders assaulted the victims with handguns after Cowles and Pina were escorted upstairs. Thus, in the light most favorable to the state, Cowles and Pina were subjected to greater danger as a result of their removal to the upstairs of the residence.

The trial court correctly denied defendant’s motion to dismiss.

Dissent

(Hunter, J.) The individual crimes that occurred throughout the home were all part of an overall plan to rob Collins inside the home. To adopt the majority’s view would make the technical asportation defense under the Double Jeopardy Clause incapable of consistent application and render it judicially unmanageable. Both kidnapping charges should be arrested, and we should remand for a new sentencing hearing.


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