NO. COA13-422
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
STATE OF NORTH CAROLINA
v. Robeson County
No. 09 CRS 52253
JAMAL ANTONIO MCRAE
Appeal by defendant from judgment entered 3 September 2012 by
Judge Thomas H. Lock in Robeson County Superior Court. Heard in
the Court of Appeals 21 October 2013.
Attorney General Roy Cooper, by Special Deputy Attorney
General Kay Linn Miller Hobart, for the State.
Law Office of Glenn Gerding, by Glenn Gerding for defendant-
appellant.
STEELMAN, Judge.
Where the State alleged a particular felony as the basis for
first-degree kidnapping, and then failed to prove the elements of
that felony, the State failed to present evidence of each element
of first-degree kidnapping. The trial court erred in denying
defendant’s motion to dismiss the kidnapping charge.
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I. Factual and Procedural Background
On 26 March 2009, J.M., a 17 year-old high school student,
was in her vehicle at a Burger King restaurant. Two men approached
her vehicle. One of them, a black man who J.M. identified as Jamal
McRae (defendant), was holding a small black handgun. At
defendant’s urging, J.M. moved into the passenger seat, and
defendant climbed into the driver’s seat. Another man got into
the back seat of the vehicle. Held at gunpoint, J.M. gave
defendant directions to go to Fayetteville. Later, at gunpoint,
defendant forced J.M. to sexually gratify him. Defendant later
forced J.M. into the trunk of the vehicle, and drove around for
30-45 minutes. J.M. found the trunk release and when she heard
the speaker for a drive-through, she got out of the trunk and ran
into the Burger King.
Defendant was charged with one count of first-degree rape,
two counts of first-degree sexual offense, one count of first-
degree kidnapping, one count of robbery with a dangerous weapon,
one count of conspiracy to commit robbery with a dangerous weapon,
one count of conspiracy to commit kidnapping, and one count of
assault with a deadly weapon with intent to kill. At the close of
State’s evidence, and then the close of all of the evidence,
defendant made a motion to dismiss the charges against him. The
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trial court denied these motions. Defendant was found guilty of
all counts. The jury also found four aggravating factors. The
trial court arrested judgment on the conviction for conspiracy to
commit second-degree kidnapping, and sentenced defendant to the
following aggravated active sentences: (1) 420-513 months
imprisonment for first-degree rape; (2) 420-513 months for two
consolidated first-degree sexual offenses; (3) 144-182 months for
first-degree kidnapping; (4) 120-153 months for robbery with a
firearm; and (5) 36-53 months for the consolidated charges of
assault with a deadly weapon with intent to kill and conspiracy to
commit robbery with a firearm. All of these sentences were to run
consecutively. The trial court further ordered defendant to
register as a sex offender, and to be subject to satellite-based
monitoring for the rest of his life.
Defendant appeals.
II. Motion to Dismiss
In his sole argument on appeal, defendant contends that the
trial court erred in denying his motion to dismiss the charge of
first-degree kidnapping. We agree.
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A. Standard of Review
“This Court reviews the trial court’s denial of a motion to
dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d
29, 33 (2007).
“‘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 (quoting State v.
Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied,
531 U.S. 890, 148 L. Ed. 2d 150 (2000).
B. Analysis
The indictment charging defendant with first-degree
kidnapping alleged that defendant confined, restrained, and
removed J.M. from one place to another “for the purpose of
facilitating the commission of a felony, larceny of a motor
vehicle.” Defendant contends that the State failed to present
evidence of each element of this underlying felony, and therefore
failed to satisfy each of the elements of the offense of first-
degree kidnapping.
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The State is not required to set forth in an indictment for
kidnapping the specific felony that the kidnapping facilitated.
State v. Yarborough, 198 N.C. App. 22, 26, 679 S.E.2d 397, 403
(2009), cert. denied, 363 N.C. 812, 693 S.E.2d 143 (2010).
However, “[w]hen an indictment alleges an intent to commit a
particular felony, the state must prove the particular felonious
intent alleged.” Id. at 27, 679 S.E.2d at 403 (quoting State v.
White, 307 N.C. 42, 48, 296 S.E.2d 267, 270 (1982)).
For a larceny to be a felony, the value of the goods stolen
must exceed $1,000; otherwise, the larceny is a misdemeanor. N.C.
Gen. Stat. § 14-72(a) (2011). Therefore, the value of the goods
stolen is an integral element of the crime of felony larceny. See
State v. Owens, 160 N.C. App. 494, 500, 586 S.E.2d 519, 523-24
(2003).
In the instant case, defendant was charged with the robbery
of J.M.’s motor vehicle under the robbery with a dangerous weapon
charge. In that indictment, the State alleged that the vehicle
had a value of approximately $2,500. However, at trial, the State
presented no evidence of the value of the vehicle. Thus, at the
close of the its evidence, the State had failed to present evidence
of intent to commit felony larceny. The charge of first-degree
kidnapping explicitly stated that the kidnapping was for the
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purpose of felicitating felony larceny, not robbery with a firearm
which would not have required proof of the value of the vehicle.
The State failed to present evidence of all of the elements of
felony larceny, which was necessary to support a conviction of
first-degree kidnapping. We therefore hold that the trial court
erred in denying defendant’s motion to dismiss the charge of first-
degree kidnapping.
We reverse defendant’s conviction for first-degree
kidnapping, and remand these cases to the trial court for
resentencing. Since defendant does not contest his other
convictions on appeal, we hold that there was no error as to these
convictions. N.C. R. App. P. 28(b)(6).
NO ERROR IN PART, REVERSED AND REMANDED IN PART.
Chief Judge MARTIN and Judge DILLON concur.