STATE OF NORTH CAROLINA v. ANDREA STEFANY ENDARA

Where the evidence of defendant’s guilt was overwhelming, the admission into

evidence of a video recorded statement which presumably violated defendant’s

constitutional right to confront witnesses against her was harmless beyond a

reasonable doubt. Where there was sufficient evidence defendant committed a

kidnapping to facilitate the commission of a felony, namely child abduction, the trial

court properly denied defendant’s motion to dismiss the kidnapping charges. Where

the trial court’s findings of fact support its conclusion that evidence of defendant’s

conduct in the maternity ward of a hospital was admissible on the charges of

kidnapping and child abduction, we affirm the trial court’s order denying defendant’s

motion in limine.

On 21 May 2012, a grand jury in Mecklenburg County indicted defendant

Andrea Stefany Endara-Paredes on two counts of second-degree kidnapping and one

count of abduction of a child. On 23 January 2013, defendant filed a motion in limine

to exclude evidence of other crimes, wrongs, or acts.

In her motion in limine, defendant acknowledged the State’s intent to establish

that on 1 May 2012, defendant “abducted . . . a baby girl who was about 4 weeks old,

from her mother . . . .” Defendant sought to suppress evidence that in April 2012, she

was banned from Presbyterian Hospital after hospital staff observed defendant

exhibiting suspicious behavior in the maternity ward. In a pretrial hearing conducted

27 January 2015 before the Honorable Jeffrey P. Hunt, Judge presiding, the trial

court denied defendant’s motion.

At trial, the evidence tended to show that in 2012, Karla Suarez moved to the

Beacon Hill Apartments in Mecklenburg County, with her husband and two children:

a one-month-old daughter, Adelina, and a five-year-old son, Rick.1 Just after moving

into the apartment complex, Suarez met defendant in the parking lot. Defendant

introduced herself as a neighbor named Joanna. Defendant immediately began

regular visits to Suarez’s apartment over the next three weeks. During one visit,

defendant spoke with Suarez about her children, asking a series of questions about

Suarez’s daughter: “[W]here [she] was born, . . . if she was born with sicknesses, if

she was born with any infirmities. . . . And she said, ‘How much do we love our

children[?] . . . Can you imagine if somebody stole your baby[?]’ ” (emphasis added).

On another occasion, defendant arrived unannounced with two men, whom defendant

said would spray Suarez’s apartment for bugs. Suarez did not allow the men into her

apartment and never saw them again.

In a later conversation, defendant asked if Suarez would be interested in

working as a secretary for defendant’s mother. Suarez informed defendant that she

had no “papers” and did not speak English. Still, defendant encouraged Suarez to

meet with defendant’s mother. Suarez said she was interested in the job, which

defendant said paid $15.00 an hour. Suarez agreed to meet defendant’s mother the

following Tuesday. Tuesday afternoon, defendant came to Suarez’s apartment.

Although, Suarez had made arrangements for childcare, defendant insisted that

Suarez bring the children with her, stating that her mother loved babies. Defendant

also insisted on driving Suarez in defendant’s car. In defendant’s car, Suarez saw a

car seat for her son and a baby carrier for her daughter. On the way to meet

defendant’s mother, defendant said they would make a brief stop at a cousin’s

STATE V. ENDARA

Opinion of the Court

- 4 -

residence, which turned out to be an apartment complex. It was getting dark, and

Suarez did not recognize the location of the apartment complex. When defendant

parked in the apartment complex parking lot, she sprayed Suarez with pepper spray,

warning her not to get out of the car to seek help. Defendant took Adelina from her

car seat and carried her to the door of an apartment that was in front of them.

Q. After she sprayed you but before she took [Adelina] out of the car, did she say anything to you?

A. That if I was to get out of the car to ask for help that she was going to kill [Adelina] and [Rick].

Q. Did you get out of the car?

A. No.

Defendant returned to the car without Adelina and began to beat Suarez with

a tire iron. Defendant then drove Suarez and Rick back to Beacon Hill Apartments.

Suarez’s husband was in the parking lot when they arrived. Once she and Rick were

outside of defendant’s car, Suarez told her husband defendant had taken their baby.

Suarez’s husband chased defendant in his car and prevented her from leaving until

law enforcement officers arrived. Charlotte police officers took defendant into

custody and transported her to the Charlotte/Mecklenburg Law Enforcement Center

(the Law Enforcement Center). At the Center, defendant was placed under formal

arrest, waived her Miranda rights, and agreed to speak with law enforcement

officers. Defendant was interviewed by Detective David Abbott. The interview,

STATE V. ENDARA

Opinion of the Court

- 5 -

which lasted over twelve hours, was video recorded; pertinent segments of it were

played for the jury at trial. During the interview, Detective Abbott informed

defendant that Suarez’s baby had been located at the residence of defendant’s

boyfriend and that defendant’s boyfriend stated defendant had brought the child

there.

Defendant did not testify or present any direct evidence at trial.

After the close of the evidence, the jury returned guilty verdicts on two counts

of second-degree kidnapping and one count of abduction of a child. In accordance

with the jury verdicts, the trial court entered separate judgments and sentenced

defendant to consecutive active terms of 20 to 33 months for abduction of a child, 31

to 98 months for one count of second-degree kidnapping, and 25 to 42 months for the

other count of second-degree kidnapping. Defendant appeals.

______________________________________

On appeal, defendant raises the following questions: whether the trial court

erred by (I) overruling defendant’s objection to the admission of the video recording

of defendant’s interview; (II) denying defendant’s motion to dismiss the kidnapping

charges; and (III) denying defendant’s motion in limine to suppress evidence of

defendant’s conduct at Presbyterian Hospital.

I

STATE V. ENDARA

Opinion of the Court

- 6 -

Defendant argues that the trial court erred by overruling her objection to the

admission of the video recording of defendant’s interview with Detective Abbott.

Defendant contends that the admission of the video tape violated defendant’s right to

confront the witnesses against her, as provided by the Sixth Amendment to the

United States Constitution. Further, defendant contends that admission of a

statement concerning a prior assault violated Rule 404, as impermissible evidence of

other crimes or acts. For these reasons, defendant contends that her convictions must

be vacated. We disagree.

Confrontation Clause

“The Sixth Amendment guarantees that ‘ “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him.” ’ ”

State v. Ortiz-Zape, 367 N.C. 1, 14, 743 S.E.2d 156, 165 (2013) (quoting Crawford v.

Washington, 541 U.S. 36, 38, 158 L.Ed.2d 177, 184 (2004) (quoting U.S. Const. amend.

VI)). “ ‘A violation of the defendant's rights under the Constitution of the United

States is prejudicial unless the appellate court finds that it was harmless beyond a

reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable

doubt, that the error was harmless.’ ” Id. at 13, 743 S.E.2d at 164 (quoting N.C.G.S.

§ 15A–1443(b) (2011)). “ ‘[O]verwhelming evidence of guilt may render error of

constitutional dimension harmless beyond a reasonable doubt.’ ” State v. Galindo,

STATE V. ENDARA

Opinion of the Court

- 7 -

200 N.C. App. 410, 414–15, 683 S.E.2d 785, 788 (2009) (quoting State v. Autry, 321

N.C. 392, 400, 364 S.E.2d 341, 346 (1988)).

During the trial, the jury heard testimony from Detective Abbott, who

interviewed defendant at the Law Enforcement Center. Detective Abbott introduced

a video recording of defendant’s interview that was admitted into evidence and played

for the jury, over defendant’s objection.

Before the trial court, out of the presence of the jury, and before this Court,

defendant contends that during the course of the video recorded interview between

Detective Abbott and defendant, Detective Abbott informed defendant that her

boyfriend Carlos Delone told police officers defendant brought the child to his

apartment and left the child there. Defendant argues that as Carlos made the

statement to police after the child was in police custody and as there was no longer

an ongoing emergency, Carlos’s statement to police was testimonial. Because Carlos

did not testify at trial, defendant argued that admission into evidence of the

detective’s statement regarding what Carlos said would violate her right to confront

the witnesses against her. Defendant’s objection was overruled by the trial court.

Defendant further argues before this Court that

[o]ne of the main questions before the jury was whether [defendant] abducted the baby and placed her in the apartment. . . . [I]t was inevitable that the jury would consider Detective Abbott’s rendition of Carlos’ statements as substantive evidence against [defendant]. . . .

STATE V. ENDARA

Opinion of the Court

- 8 -

. . .

Yet [defendant] was not able to confront and cross-examine [Carlos], in denial of her Constitutional right under the Sixth Amendment to confront witnesses against her.

Notwithstanding the contested statement, video recorded during the police

interview, the State presented substantial testimony detailing the events occurring

during the three-week period between the time defendant befriended Suarez and the

moment defendant abducted Suarez’s daughter, Adelina.

Suarez testified that on the night defendant abducted her child, defendant

drove Suarez to an unfamiliar apartment complex, and attacked Suarez with pepper

spray and what Suarez described as “a long piece of metal[.] . . . [I]t’s like an L, it’s

for the tires of the car.” This was later discovered to be a tire iron. Suarez testified

that she climbed into the backseat of defendant’s car to avoid being hit and then held

onto the tire iron until she was able to take it away from defendant. When defendant

drove Suarez and her son back to the Beacon Hill Apartment complex, Suarez’s

husband, Ronny Pax Ramiro, was in the parking lot and later testified that his wife

and son got out of the back seat of defendant’s vehicle. Suarez “was red and she was

crying.” When Suarez informed Ramiro that defendant had kidnapped their

daughter, Ramiro detained defendant until law enforcement officers took defendant

into custody. At the Law Enforcement Center, Suarez and Ramiro spoke with

Detective Santiago. Detective Santiago described Suarez’s demeanor as “distraught,

STATE V. ENDARA

Opinion of the Court

- 9 -

upset. She was crying. . . . [Ramiro] appeared to be despondent, like not knowing

what was going on . . . .”

Q At the time that you spoke with them, did [Suarez] bring anything with her? Did she have anything in her hands?

A She had a tire iron in her hands.

Q Did she tell you why she was carrying a tire iron?

A She said that that was what was used to assault her.

Detective Santiago observed bruises on Suarez’s arms.

Detective Santiago further testified that in investigating their daughter’s

abduction, Suarez and Ramiro were transported to the last intersection Suarez could

remember. Police officers searched the area based on Suarez’s description of the

apartment complex where defendant had left her baby and where Suarez was

attacked. Two and a half hours later, officers found the apartment complex. The

intensive search led them to 4212 Knob Oak Lane, Apartment B. Carlos Deleon was

the only adult occupant of the apartment. He consented to a search of the apartment.

In the apartment, Detective Santiago found Suarez’s daughter, Adelina, asleep in a

baby crib. In the apartment, law enforcement officers also found baby clothes, a baby

bath, baby bottles, and pacifiers.

Even assuming the trial court erred in admitting Carlos’s statement that

defendant brought the child to his apartment and left her there, in light of the

STATE V. ENDARA

Opinion of the Court

- 10 -

overwhelming evidence of defendant’s guilt, such error, even if potentially

constitutional error, was harmless beyond a reasonable doubt. See Galindo, 200 N.C.

App. at 414–15, 683 S.E.2d at 788 (“[O]verwhelming evidence of guilt may render

error of constitutional dimension harmless beyond a reasonable doubt.” (citation and

quotation marks omitted)). Defendant’s argument is overruled.

Rule 404(b)

Defendant also argues that the trial court erred in admitting into evidence

portions of the video recorded interview between defendant and Detective Abbott,

during which Detective Abbott stated that defendant’s boyfriend Carlos stated to

police officers that defendant had assaulted him. Defendant contends that such an

admission, in addition to violating the Confrontation Clause, also violated Rule 404(b)

of our Rules of Evidence as it was inadmissible and prejudicial evidence of other

crimes or acts. However, as defendant notes, the trial court made no findings

regarding the admissibility of this evidence under Rule 404(b). Futher, upon review

of the record, it does not appear the evidence was offered as 404(b) evidence.

Therefore, we will not review on appeal an issue not presented to the trial court. N.C.

R. App. P. 10(a)(1) (2015) (“In order to preserve an issue for appellate review, a party

must have presented to the trial court a timely request, objection, or motion, stating

the specific grounds for the ruling the party desired the court to make if the specific

grounds were not apparent from the context.”).

STATE V. ENDARA

Opinion of the Court

- 11 -

As for the Confrontation Clause,

[a] defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant.

N.C. Gen. Stat. § 15A-1443(a) (2015) (emphasis added).

Given the overwhelming evidence presented against defendant and the

absence of any evidence to the contrary, even assuming error, there is no reasonable

possibility that had the error in question not been committed a different result would

have been reached at trial. See id. Accordingly, we overrule defendant’s argument.

II

Defendant next argues the trial court erred by denying her motion to dismiss

the charges on two counts of kidnapping. Defendant contends that she was indicted

on charges of kidnapping “for the purpose of facilitating the commission of a felony,”

(emphasis added) but the evidence supported only a charge of kidnapping for the

purpose of facilitating flight following the commission of a felony, causing a fatal

variance between the indictment and the evidence. We disagree.

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. ENDARA

Opinion of the Court

- 12 -

If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed.

State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (citation omitted). “[T]he

trial court must consider the evidence, both direct and circumstantial, in the light

most favorable to the State, giving the State the benefit of every reasonable inference

to be drawn from the evidence.” State v. Davis, 158 N.C. App. 1, 13, 582 S.E.2d 289,

297 (2003) (citation omitted). “We review a trial court's decision to deny a motion to

dismiss for insufficient evidence de novo.” State v. Privette, 218 N.C. App. 459, 471,

721 S.E.2d 299, 308–09 (2012) (citation omitted).

Defendant was indicted on two counts of second-degree kidnapping (one count

of kidnapping as to Suarez and one count of kidnapping as to Suarez’s son, Rick) “for

the purpose of facilitating the commission of a felony” in violation of General Statutes,

section 14-39.

Pursuant to N.C. Gen. Stat. § 14-39,

[a]ny 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 of kidnapping if such confinement, restraint or removal is for the purpose of:

. . .

STATE V. ENDARA

Opinion of the Court

- 13 -

(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony[.]

N.C. Gen. Stat. § 14-39(a) (2015).

Under N.C. Gen. Stat. § 14–39, “ ‘where false and fraudulent representations or fraud amounting substantially to a coercion of the will of the kidnapped person are used as a substitute for force in effecting kidnapping, there is, in truth and in law, no consent at all on the part of the victim.’ ” State v. Jackson, 309 N.C. 26, 40, 305 S.E.2d 703, 714 (1983) (quoting State v. Gough, 257 N.C. 348, 356, 126 S.E.2d 118, 124 (1962)).

Davis, 158 N.C. App. at 13, 582 S.E.2d at 297. Therefore, confinement, restraint, or

removal from one place to another induced by false and fraudulent representation or

fraud can satisfy the statutory requisites for kidnapping. See id.

At trial, the State presented evidence that Suarez and Rick entered

defendant’s car and left Suarez’s apartment complex because defendant falsely

represented to Suarez that defendant’s mother was willing to speak with Suarez

about a job opening and defendant would drive Suarez to meet defendant’s mother.

But once Suarez and Rick were inside defendant’s vehicle, defendant drove to the

apartment complex where defendant’s boyfriend lived. And there, defendant sprayed

pepper spray in Suarez’s face and abducted Adelina.2

2 Pursuant to General Statutes, section 14-41, “[a]ny person who, without legal justification or defense, abducts or induces any minor child who is at least four years younger than the person to leave any person, agency, or institution lawfully entitled to the child's custody, placement, or care shall be guilty of a Class F felony.” N.C. Gen. Stat. § 14-41(a) (2015).

STATE V. ENDARA

Opinion of the Court

- 14 -

Thus, there was evidence presented that defendant lured Suarez and her

children into defendant’s car using fraudulent statements and then took them to an

unfamiliar area in order to facilitate the commission of a felony, the abduction of

Suarez’s daughter, Adelina. Further, the evidence shows defendant used pepper

spray and threats of killing both of Suarez’s children if she left the car to try and get

help, thereby unlawfully restraining Suarez and Rick for purposes of abducting

Adelina. Therefore, when viewed in the light most favorable to the State, the

evidence was sufficient to support the charge of kidnapping to facilitate the

commission of a felony per General Statutes, section 14-39(a), as to Suarez and Rick,

and of defendant being the perpetrator of the offense. See Scott, 356 N.C. at 595, 573

S.E.2d at 868. Accordingly, defendant’s argument alleging a fatal variance between

the indictment and the evidence is overruled.

III

Lastly, defendant argues that the trial court erred in overruling defendant’s

motion in limine to suppress evidence of her conduct at Presbyterian Hospital. We

disagree.

“A pretrial motion to suppress is a type of motion in limine.” State v. Rayfield,

231 N.C. App. 632, 637, 752 S.E.2d 745, 751 (citation omitted), review denied, 367

N.C. 504, 758 S.E.2d 871 (2014).

Our review of the denial of a motion to suppress is “limited to determining whether the trial judge's underlying

STATE V. ENDARA

Opinion of the Court

- 15 -

findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.”

Id. at 638–39, 752 S.E.2d at 752 (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d

618, 619 (1982)).

In an order entered 30 January 2015, the trial court found that on 11 April

2012, a nurse working in the maternity ward of Presbyterian Hospital observed

defendant and a male companion, alleged to be her boyfriend (and later determined

to be Carlos Deleon). This was the third occasion the nurse had observed defendant.

On the first two occasions, the nurse had engaged defendant in conversation and

noted that defendant asked the same questions on both occasions. On this third

occasion, at 11:00 p.m., the nurse became suspicious and called hospital security. The

hospital security guard arrived and asked defendant questions in English. When the

answers defendant provided did not “check out,” the guard called the Charlotte

Mecklenburg Police Department and requested assistance. A law enforcement

officer, bilingual in English and Spanish, arrived and again questioned defendant.

Based on her answers, including the falsehood that she was in the hospital because

her sister was giving birth, the law enforcement officer banned defendant from the

hospital premises. On 1 May 2012, defendant was charged with the crimes of second

degree kidnapping and child abduction.

STATE V. ENDARA

Opinion of the Court

- 16 -

Based on its findings of fact, the trial court concluded the evidence of

defendant’s conduct at the hospital was relevant to the charges against defendant

and was offered to show motive, plan, preparation, identity, intent, and opportunity,

but not as to character. The court further concluded that the probative value of the

evidence outweighed any potential prejudice to defendant. Accordingly, the trial

court ordered that the evidence would be admitted pursuant to Rule 403 and Rule

404(b) and overruled defendant’s motion in limine.

Defendant challenges the trial court’s conclusion that the evidence is

admissible for a permissible purpose under Rule 404(b). Defendant contends that the

evidence and findings illustrating defendant’s conduct at Presbyterian Hospital in

April was too dissimilar to defendant’s conduct as charged on 1 May 2012 except to

show defendant had a propensity to commit the crime with which she was charged

on 1 May 2012, the kind of character evidence Rule 404 is intended to preclude.

Pursuant to our Rules of Evidence, Rule 402, “[a]ll relevant evidence is

admissible . . . .” N.C. Gen. Stat. § 8C-1, Rule 402 (2015). Pursuant to Rule 404(b),

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

Id. § 8C-1, Rule 404(b).

[C]ases decided by [our Supreme Court] [discussing] Rule

STATE V. ENDARA

Opinion of the Court

- 17 -

404(b) state a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.

State v. Coffey, 326 N.C. 268, 278–79, 389 S.E.2d 48, 54 (1990). “Under Rule 404(b)

a prior act or crime is ‘similar’ if there are some unusual facts present in both crimes

. . . .” State v. Carpenter, 361 N.C. 382, 388, 646 S.E.2d 105, 110 (2007) (citation and

quotation marks omitted).

Here, the trial court’s unchallenged findings indicate defendant was observed

in the maternity ward of Presbyterian Hospital on at least three occasions and on the

third occasion, accompanied by a male companion, her boyfriend Carlos Deleon. By

the third occasion, a nurse working in the maternity ward became suspicious, and

upon questioning by a hospital security guard and a Charlotte Mecklenburg police

officer, defendant was “banned” from the hospital premises. We hold that the trial

court’s findings regarding defendant’s behavior at Presbyterian Hospital, with the

last incident occurring less than a month before the abduction, are sufficiently similar

to defendant’s conduct for which she was charged on 1 May 2012, abduction of a child,

to be admissible pursuant to Rule 404(b).

Accordingly, we overrule defendant’s argument.

NO ERROR.