State v. Pender, 243 N.C. App. 142 (2015)

Vacated in Part

(no error as to remaining convictions: violating DVPO, possession of firearm by a felon; first degree burglary, assault by pointing a gun, second degree kidnapping)

  • Facts: Defendant confined twelve people, several of whom were younger than 16 years old, in a bedroom for 30 – 45 minutes and held them at gunpoint. Two of the minors were defendant’s children.
  • G.S. 14-39(a) includes in the definition of kidnapping the unlawful confinement of any person under 16 years of age without the consent of a parent or legal custodian of the child. There is no kidnapping when a parent or legal custodian consents to the unlawful confinement of his own minor child, even if the child does not consent. Only one parent is required to consent. A legislative change would be needed to charge a parent with kidnapping of his own minor child.
  • A victim’s age is not an essential element of the crime of kidnapping, but is a factor that relates to the state’s burden of proof in showing consent was not provided by the parent or guardian of a child younger than 16. An indictment that alleges a child younger than 16 (versus the child’s parent or legal custodian) did not consent is adequate.
Criminal Cases with Application to Child Welfare
Parental Kidnapping
Defendant's Children
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