in the Supreme Court on 12 December 2017.
pursuant to N.C. G.S. § 7A-30(2) from the decision of a
divided panel of the Court of Appeals, __ N.C.App. __, 797
S.E.2d 324 (2017), finding no error in part and vacating and
remanding in part judgments entered on 5 February 2016 by
Judge Henry W. Hight, Jr. in Superior Court, Durham County.
H. Stein, Attorney General, by Grady L. Balentine, Jr.,
Special Deputy Attorney General, for the State-appellant.
Richard Croutharmel for defendant-appellee.
Nathaniel Malone China was convicted by a jury on 1 February
2016 of a number of offenses, including felonious breaking or
entering, first-degree sexual offense, second-degree
kidnapping, misdemeanor assault inflicting serious injury,
and intimidating a witness. Here we must decide whether there
was sufficient evidence of restraint that was separate and
apart from that inherent in the commission of the
first-degree sex offense to support the kidnapping
conviction. The Court of Appeals concluded that there was not
and vacated defendant's conviction for second-degree
kidnapping. State v. China, __ N.C. App.
__, __, 797 S.E.2d 324, 328-30 (2017).
Because we conclude that the evidence of restraint beyond
that inherent in the commission of the sex offense did
suffice, we reverse the decision of the Court of Appeals.
and Procedural Background
defendant began a romantic relationship with Nichelle Brooks.
At some point thereafter, defendant was sent to prison.
During his incarceration, until the summer of 2013, defendant
continued to talk occasionally with Ms. Brooks by telephone.
On one of these phone calls, Ms. Brooks, who was then
involved with Mark,  informed defendant that she had begun a
new relationship. Nonetheless, defendant called Ms. Brooks
after his release from prison seeking to resume their prior
relationship. Ms. Brooks agreed to meet with defendant at her
apartment, hoping to make clear that their relationship was
over. Later that day, defendant met Ms. Brooks at her
apartment, spent the night, and then left the following
this time, Ms. Brooks asked Mark not to visit her for a few
days so that she could "get things in order" with
defendant. Believing that she had successfully ended her
relationship with defendant, Ms. Brooks told Mark that he
could return to her apartment. Mark visited Ms. Brooks on 14
October 2013 and spent the night at her apartment. The
following morning, 15 October, Mark was still asleep when Ms.
Brooks left to take her daughter to the bus stop and to go to
school at Durham Beauty Academy.
awoke when he heard people outside of the apartment. He
looked out the window and, not seeing anything of concern,
returned to bed. Moments later, Mark heard a knock; he went
to the door, looked through the peephole, and saw two men he
did not recognize. At trial, Mark identified one of these men
as defendant. As Mark made his way back to the bedroom, he
heard banging on the door, enough to cause the door to shake.
Mark began to dress in his work uniform, when he heard a loud
boom as the door was kicked in.
rushed into the apartment and ran towards the bedroom,
cursing at Mark. Before Mark had a chance to defend himself,
defendant punched him in the face, knocking him sideways onto
the bed. Defendant then got on the bed and on top of Mark,
continuing to curse and strike Mark in the face with his
fist. Defendant was hitting Mark solely in the face up to
this point, and the last blow caused Mark to roll over
completely onto his stomach. At that point, defendant punched
Mark in the back of the head, stunning him. Defendant then
pulled down Mark's pants and anally penetrated him three
times with his penis.
then swung his right arm to get defendant off of him, and
defendant "jumped off of Mark. While Mark was
"kicking away" at defendant, defendant grabbed him
by the ankles, yanking him off the bed and causing the back
of Mark's head to hit the floor. Defendant called to his
companion, who came into the room; together they began
"kicking and stomping" Mark, who was on the floor
with his back pressed against a dresser. Mark testified that
the two men were kicking and stomping "[m]y face, my
head, my back, my ribs, my legs, my knees. . . . It was
everywhere." During this time, Mark "was balling
[his body] up" trying to protect himself. Eventually,
defendant and the other man stopped kicking, and Mark quickly
got up and ran out of the apartment. Mark still had his keys
in his pocket, and although he was dizzy and bleeding badly,
he ran to his car and was able to drive to his place of
employment for help. Mark woke up at Duke Hospital in a
significant amount of pain. In addition to the injuries to
his face, Mark testified that his "ribs were really
sore" and his knees were "really messed up, "
that he "couldn't walk, really, " and that he
was forced "to crawl to the bathroom at home to go to
the bathroom" for the next two to three weeks. Mark also
suffered emotional injuries as a result of the incident.
November 2013, defendant was indicted in Durham County on
charges of felonious breaking or entering, felonious assault
inflicting serious bodily injury, and first-degree
kidnapping. The indictment for kidnapping alleged that
defendant "unlawfully, willfully and feloniously did
kidnap [Mark], a person over the age of sixteen years,
without his consent, by unlawfully restraining him for the
purpose of facilitating the commission of a felony, doing
serious bodily harm to [Mark], and terrorizing [Mark]."
On 7 April 2014, defendant was indicted on charges of first-
degree sexual offense, crime against nature, and intimidating
a witness. A separate indictment on 1 June 2015 charged
defendant as an habitual felon. The district attorney
dismissed the indictment for intimidating a witness, and
defendant agreed to proceed on that charge under a criminal
bill of information. Additionally, the State dismissed the
charge of crime against nature before trial.
was tried in the Superior Court in Durham County during the
criminal session that began on 26 January 2016 before Judge
Henry W. Hight, Jr. At trial, the State chose to proceed on
second-degree kidnapping instead of first-degree kidnapping.
At the close of the State's evidence, defendant moved for
dismissal of the charges. The trial court agreed to submit to
the jury the charge of misdemeanor assault inflicting serious
injury, as opposed to felonious assault inflicting serious
bodily injury, and denied defendant's motion with respect
to the other charges. On the charge of kidnapping, the trial
court instructed the jury:
Count number three. Under counter [sic] number three, the
Defendant has been charged with second degree kidnaping. For
you to find the Defendant guilty of this offense, the State
must prove three things beyond a reasonable doubt.
First, that the Defendant unlawfully restrained [Mark], that
is, restricted his freedom of movement,
Second, that [Mark] did not consent to this restraint,
And, third, the Defendant did this for the purpose of
terrorizing [Mark]. Terrorizing means more than just putting
another in fear. It means putting that person in some high
degree of fear, a state of intense fright or apprehension.
February 2016, the jury found defendant guilty of felonious
breaking or entering, misdemeanor assault inflicting serious
injury, second-degree kidnapping, first-degree sexual
offense, and intimidating a witness. Defendant then admitted
to having attained habitual felon status. Judge Hight
sentenced defendant to consecutive terms of 150 days for
misdemeanor assault inflicting serious injury, 78 to 106
months for breaking and entering, 88 to 118 months for
second-degree kidnapping, 336 to 416 months for first-degree
sex offense, and 88 to 118 months for intimidating a witness.
At the State's request, the trial court conducted a
resentencing proceeding on 5 February 2016, at which Judge
Hight arrested judgment on the misdemeanor assault inflicting
serious injury conviction. Defendant appealed to the Court of
Court of Appeals, defendant first argued that the trial court
erred in allowing the jury to hear that he had been recently
released from prison. China, __ N.C.App. at __, 797
S.E.2d at 327. The panel unanimously held that defendant did
not preserve that issue for appeal; therefore, they did not
reach the merits of his argument on that issue. Id.
at __, __, 797 S.E.2d at 327-28, 330.
next argued that the trial court erred in denying his motion
to dismiss the kidnapping charge because the evidence was
insufficient to prove that any confinement or restraint was
separate and apart from the force necessary to facilitate the
sex offense. The Court of Appeals majority agreed, noting
that this Court has previously opined that "certain
felonies . . . cannot be committed without some restraint of
the victim" and the statutory offense of kidnapping
"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."
Id. at __, 797 S.E.2d at 329 (quoting
State v. Ripley, 360 N.C. 333, 337, 626 S.E.2d 289,
292 (2006)). The majority concluded that the evidence here
"describe[d] a sudden attack" that "took no
more than a few minutes." Id. at __,
797 S.E.2d at 329. Further, the majority rejected the
State's contention that removal of the victim from the
bed to the floor and the subsequent stomping and kicking of
Mark was an action separate from the assaults themselves.
Id. at __, 797 S.E.2d at 329. The majority
then concluded that "there is no evidence in the record
that Mark was subjected to any restraint beyond that inherent
in defendant's commission of first-degree sex offense and
misdemeanor assault inflicting serious injury."
Id. at __, 797 S.E.2d at 329. Accordingly,
the majority concluded that the trial court erred by denying
defendant's motions to dismiss the kidnapping charge.
Id. at __, 797 S.E.2d at 329. The majority
instructed the trial court on remand to vacate
defendant's conviction for second-degree kidnapping and
correct the judgments to retain defendant's consecutive
sentences for his remaining convictions. Id. at
__, 797 S.E.2d at 329-30.
separately, Judge Dillon concurred in part and dissented in
part; he disagreed with the majority that there was
insufficient evidence that defendant "restrained the
victim beyond the restraint inherent to the sexual
assault." Id. at __, 797 S. E2d at 330
(Dillon, J, concurring in part and dissenting in part). Judge
Dillon noted that the removal of the victim from the bed to
the floor occurred after defendant completed his sexual
assault on the victim. Id. at __, 797
S.E.2d at 330. Judge Dillon added, "Then, while
the victim was on the floor, Defendant restrained the victim
by beating and kicking the victim, preventing the victim from
getting up." Id. at __, 797 S.E.2d at 330. In
his dissent, Judge Dillon opined, "Granted, this
separate restraint did not last long. But this restraint
which occurred while the victim was on the floor was
not inherent to the sexual assault which was
completed while the victim was on the bed." Id.
at __, 797 S.E.2d at 330. The dissenting opinion also noted
that while defendant was also convicted of assault, the trial
court arrested judgment on the assault conviction.
Id. at __, 797 S.E.2d at 330 n.3. Accordingly, Judge
Dillon would have held that the verdict and judgment for
kidnapping should stand. Id. at __, 797 S.E.2d at
State filed its appeal of right based on the dissent.
State argues that the trial court did not err in denying
defendant's motion to dismiss the kidnapping charge
because there was sufficient evidence of restraint that was
separate and apart from that inherent in the commission of
the sex offense. We agree.
ruling on a defendant's motion to dismiss for sufficiency
of the evidence, the trial court must determine "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." State v. Powell, 299 N.C. 95,
98, 261 S.E.2d 114, 117 (1980) (first citing State v.
Roseman, 279 N.C. 573, 580, 184 S.E.2d 289, 294 (1971);
then citing State v. Mason, 279 N.C. 435, 439, 183
S.E.2d 661, 663 (1971)). "Substantial evidence is
relevant evidence that a reasonable mind might accept as
adequate to support a conclusion." State v.
Turnage, 362 N.C. 491, 493, 666 S.E.2d 753, 755 (2008)
(quoting State v. Crawford, 344 N.C. 65, 73, 472
S.E.2d 920, 925 (1996)). Furthermore, "the trial court
must consider the evidence in the light most favorable to the
State, drawing all reasonable inferences in the State's
favor." State v. Miller, 363 N.C. 96, 98, 678
S.E.2d 592, 594 (2009) (citing State v. McCullers,
341 N.C. 19, 28-29, 460 S.E.2d 163, 168 (1995)). Whether the
State has presented substantial evidence is a question of
law, which we review de novo. State v. Cox, 367 N.C.
147, 150-51, 749 S.E.2d 271, 274-75 (2013) (citations
elements of kidnapping are defined by statute. See
Ripley, 360 N.C. at 337, 626 S.E.2d at 292 ("The
offense of kidnapping, as it is now codified in N.C. G.S.
§ 14-39, did not take form until 1975, when the General
Assembly amended section 14- 39 and abandoned the traditional
common law definition of kidnapping for an element-specific
definition."). Section 14-39 now provides, in relevant
(a) Any person who shall unlawfully confine, restrain, or
remove from one place to another, any other person 16 years
of age or over without the consent of such person, or any
other person under the age of 16 years without the consent of
a parent or legal custodian of such person, shall be guilty