Heard in the Supreme Court February 17, 2014.
Counsel Amended May 23, 2014.
Hoke County. Nos. 11CRS50130-31, 11CRS800. Richard T. Brown, Judge.
N.C. DEPARTMENT OF JUSTICE, Raleigh, NC, by Kathleen N. BoltonMs., Primary Attorney, Assistant Attorney General, for the Plaintiff-Appellant - State of North Carolina.
Leslie C. RawlsMs., Primary Attorney, Attorney at Law, Charlotte, NC, for Defendant-Appellee - Stokes, George Victor.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous unpublished decision of the Court of Appeals,
__ N.C.App. __, 745 S.E.2d 375 (2013), vacating the judgment, entered 9 March 2012 by Judge Richard T. Brown in Superior Court, Hoke County, on defendant's conviction for second-degree kidnapping and remanding for resentencing following remand from the Supreme Court of North Carolina of the Court of Appeals' prior decision in this case, State v. Stokes,
__ N.C.App. __, 738 S.E.2d 208 (2013). Heard in the Supreme Court on 17 February 2014.
Today we examine the scope of an appellate court's review after it concludes that a defendant's conviction was not supported by sufficient evidence. When confronted with such a situation, our long-standing practice has been to determine whether the evidence presented was sufficient to support a lesser included offense of the convicted crime. If so, we recognize the jury's verdict as a verdict of guilty to the lesser included offense. The Court of Appeals therefore erred by refusing to consider whether defendant's actions constituted the lesser included offense of attempted second-degree kidnapping after finding the evidence insufficient to support the jury's verdict of second-degree kidnapping. Because the State presented sufficient evidence that defendant's actions satisfied each element of attempted second-degree kidnapping, we reverse the decision of the Court of Appeals and remand for entry of judgment on the lesser offense.
On 21 April 2008, defendant and another unidentified man entered S& J Grocery in Bowmore, North Carolina, where Terry Parker worked as a clerk. Both men pointed guns at Parker and demanded cash and cigarettes. The man accompanying defendant took between $180 and $200 from the cash register. When Parker reached under the counter for the cigarettes, defendant fired his gun next to Parker's head. After Parker gave the men five or six cartons of cigarettes, defendant ordered Parker, at gunpoint, to " [g]o to the back of the store." Parker refused, believing defendant would kill him if he complied. Defendant then repeatedly demanded that Parker " [g]et in the car," which was parked outside the store and occupied by a third unidentified person. Parker walked from behind the counter toward the entrance, but stopped because he believed defendant would kill him if he got into the car. Defendant and the others then left the store, and Parker notified police. Defendant was eventually apprehended and confessed to being present during the robbery " and that he fired a shot at the clerk."
As a result, defendant was convicted of second-degree kidnapping, possession of a firearm by a felon, assault with a deadly weapon with intent to kill, robbery with a dangerous weapon, and attaining the status of habitual felon. The jury did not consider a charge of attempted second-degree kidnapping. Defendant appealed, arguing, inter alia, that the State failed to introduce sufficient evidence of removal, an essential element of second-degree kidnapping. State v. Stokes, __ N.C.App. __, __, 738 S.E.2d 208, 211 (2013). The Court of Appeals agreed and reversed defendant's second-degree kidnapping conviction. Id. at, 738 S.E.2d at 211. The State then petitioned this Court for discretionary review, asserting, inter alia, that the Court of Appeals erred by
failing to remand the case for entry of judgment and sentencing on attempted second-degree kidnapping. We allowed the State's request by special order, in pertinent part, " for the limited purpose of remanding the matter to the Court of Appeals . . . for consideration of whether defendant's actions satisfy the elements of attempted kidnapping under N.C.G.S. § 15-170." On remand the Court of Appeals concluded:
[W]e find a discussion of attempted second-degree kidnapping to be inappropriate here for the following reasons: 1) The State did not argue or attempt to prove attempted second-degree kidnapping at trial; 2) Likewise, the jury was not instructed on attempted second-degree kidnapping; 3) The State made no mention or argument of attempted second-degree kidnapping in its appeal to this Court. ...