In this Lincoln County case, the defendant stole a car left running outside of a gas station. A three-year old child was in the backseat. Once officers attempted to stop the car, the defendant led police on a high-speed chase and ultimately crashed. The child was not harmed. During the chase, the defendant called 911 and attempted to bargain for the child’s release. He was charged with first-degree kidnapping, abduction of a child, larceny of a motor vehicle, possession of stolen property, and habitual felon. The jury convicted on all counts. The defendant did not appeal, but later filed a petition for writ of certiorari seeking review of his convictions, which was granted.

(1) The child abduction statute includes language that the offense must occur “without legal justification or excuse.” See G.S. § 14-41(a). The defendant contended that this language required the State to prove that the defendant acted willfully, and that the failure to instruct the jury on mens rea improperly treated the crime as a strict liability offense. The Court of Appeals disagreed. There is no requirement of “willfulness” in the language of the statute. While the offense is not a strict liability crime, it is also not a specific intent crime as defendant argued. Rather, the offense is a general intent crime, requiring a showing only that the defendant acted “knowingly.” The “without justification or excuse” language in the statute allows the defendant to argue defenses like mistake of fact, necessity, or others, but does not create a specific intent requirement. This argument was therefore rejected. 

(2) There was sufficient evidence to support the conviction for child abduction. The evidence showed that the defendant continued driving the car at high speeds while fleeing police, even after realizing that a child was in the backseat. After the point at which the defendant called 911 and acknowledged the presence of the child in the car, he continued to disobey police and dispatch commands to stop and continued fleeing for at least 15 minutes. Though “[a] defendant may exculpate a mistake though subsequent conduct,” the defendant here made no such showing. Slip op. at 10.

(3) There was no error, much less plain error, in the trial court’s failure to instruct the jury that the defendant must have acted willfully in abducting the child, for the same reasons that the statute does not create a specific intent crime. There was therefore no error in the trial court’s instructions to the jury for that offense.

(4) During a pretrial conference, the parties agreed that the jury would be instructed only on removal as the State’s theory for first-degree kidnapping, which was the theory alleged in the indictment. At charge conference, the State requested and received jury instructions on all three possible theories (restraint, removal, or confinement). See G.S. § 14-39. Trial counsel for the defendant assented to those instructions and did not otherwise object. Despite trial counsel’s agreement, this argument was not waived and could be reviewed for plain error. However, the court found no plain error based on the evidence (which supported each theory), and the fact that there was no conflicting evidence as to the three theories. “Defendant cannot demonstrate plain error because it is undisputed that the evidence at trial supported the theory of kidnapping alleged in the indictment––removal––and also supported the two additional theories of kidnapping included in the instruction––restraint and confinement.” French Slip op. at 12.

(5) The trial court erred in sentencing the defendant for possession of stolen goods (the car) and larceny of a motor vehicle. “A defendant cannot be convicted of both [of these] offenses when the subject property is the same.” Id. at 14. The Court of Appeals therefore vacated the conviction for the possession of stolen goods conviction and found no error as to the defendant’s other convictions.

In a multiple homicide case in which the defendant also was charged with kidnapping a victim who was a minor, there was sufficient circumstantial evidence that the minor’s parents did not consent to her kidnapping. Because the victim’s parents did not testify, there was no direct evidence of lack of parental consent. However, the State presented evidence that, having shot and repeatedly stabbed the victim while she was at the murder scene, the defendant and his accomplices found her after she crawled outside and removed her from the yard for the stated purpose of killing her while she was incapable of escaping. They loaded her into the bed of the defendant’s truck and drove to a trash pile, only to abandon her there when they heard sirens.

The defendant was indicted for seven crimes arising from a domestic violence incident. The defendant severely beat his wife, resulting in her being hospitalized for six days where she was treated for extensive swelling and bruising to face and neck, fractures to rib bones and bones around her eyes, strangulation, contusions, and kidney failure induced by toxins released from skeletal muscle destruction. Following trial, the defendant was convicted of six of the seven charges and was sentenced to four consecutive sentences totaling 578 to 730 months. The defendant appealed.

(1) On appeal, the defendant first argued that the trial court committed plain error in failing to instruct the jury on the lesser-included offense of attempted voluntary manslaughter because the evidence showed that the defendant lacked the requisite intent for attempted first-degree murder. The defendant contended that the State failed to conclusively prove he had the requisite intent of premeditation and deliberation to commit first-degree murder because evidence at trial showed that he assaulted his wife spontaneously in response to adequate provocation. In rejecting this argument, the Court of Appeals noted that there was overwhelming evidence at trial supporting premeditation and deliberation. Although the wife admitted during trial that she stabbed the defendant in the chest with a knife, the defendant’s testimony confirmed that the subsequent assault lasted multiple hours, and the defendant testified that he “knew what he was doing” and agreed that he “could have left at any time.” Slip op. at ¶ 27. The Court thus held that this the defendant’s testimony did not warrant an instruction on attempted voluntary manslaughter.

(2) The defendant next argued that the trial court did not ensure the defendant had knowingly consented before allowing defense counsel to concede the defendant’s guilt to multiple charges. The defendant contended that statements made by his defense counsel during opening and closing statements constituted an implied admission of his guilt because counsel (i) told the jury that the defendant “beat” his wife and (ii) argued only against the charge of first-degree murder and did not mention the defendant’s other charges in closing argument. The Court of Appeals held that defense counsel’s reference to the defendant having beaten his wife did not amount to a Harbison error because the defendant chose to testify on his own behalf, under oath, with full awareness that he did not have to testify. The defendant then repeatedly admitted that he beat his wife. The Court concluded that defense counsel repeated the defendant’s own testimony, then urged the jury to evaluate the truth in defendant’s words, and that defense counsel’s statements could logically be interpreted as a recitation of facts presented at trial.

(3) The defendant’s final argument was that the trial court erred by denying his motion to dismiss the charge of first-degree kidnapping because the State failed to introduce sufficient evidence of confinement separate from that which was inherent in the commission of the assaults on his wife. In rejecting this argument, the Court reasoned that the State presented evidence that the defendant confined his wife to her apartment through actions apart from confinement inherent in the many instances of assault, and the evidence allowed a reasonable inference that the defendant chose to wholly confine his wife to her apartment to prevent her from seeking aid.

The defendant was convicted of two counts of sexual offense with a child by an adult, rape of a child, first-degree kidnapping, and two counts of taking indecent liberties with a child in Wake County, stemming from the assault of a six-year-old child at a church.

(1) In regard to one of the indecent liberties convictions, the defendant argued that the State did not present sufficient evidence that the defendant acted inappropriately when touching the victim’s chest and that such evidence was only offered for corroborative purposes. The victim’s testimony discussing the touching of her chest was only presented by way of her videotaped forensic interview and was not raised in the victim’s trial testimony. The Court of Appeals disagreed, finding that the videotaped forensic interview of the victim “was properly admitted under Rule 803(4) as her statements were made for the purposes of medical diagnosis or treatment, and the statements were reasonably pertinent to diagnosis or treatment.” Slip op. at 8. Additionally, the trial court instructed the jury to consider the video as substantive evidence. The Court of Appeals therefore determined that “[t]he evidence was sufficient to support denial of the motion to dismiss the challenged charge of taking indecent liberties with a child.” Id.

The defendant also argued that there was insufficient evidence to support a finding that the defendant forcibly removed the victim to facilitate the offense, an essential element of the crime of kidnapping. Specifically, the defendant argues the evidence does not show that he used actual force, fraud, or trickery to remove the victim. The Court of Appeals rejected this argument as well, finding that the defendant’s act of taking the victim to a secluded place to continue the sexual assault was sufficient to support removal for purposes of kidnapping.

(2) Concerning the defendant’s convictions of first-degree kidnapping and sexual offense with a child, the defendant argued “that the trial court erred by instructing on first-degree kidnapping and by failing to instruct on sexual offense with a child by an adult.” Id. at 10. The Court of Appeals found no prejudicial error in the instruction given on first-degree kidnapping because “[t]he evidence at trial was consistent with the allegations in the indictment,” even though the language of the jury instruction varied from the indictment. Id. at 11. The kidnapping indictment stated that “[D]efendant also sexually assaulted [Maya]” while the jury was instructed “that the person was not released by the defendant in a safe place.” Id. at 11-12. The Court of Appeals noted that such variance is usually prejudicial error but determined that the evidence here supported both the theory of the indictment and that of the jury instructions. On plain error review, the court rejected the defendant’s argument and concluded “it is not probable that the jury would have reached a different result if given the correct instruction.” Id. at 12.

The defendant also argued that the trial court erred by entering judgment on sexual offense with a child by an adult after instructing the jury on first-degree sex offense, a lesser offense. The Court of Appeals agreed. Because “[t]he jury instruction clearly outlined the lesser included offense of first-degree sexual offense . . . it was improper for the trial court to enter judgment for two counts of sexual offense with a child.” Id. at 17. The trial court did not instruct on the essential element of age as to the sexual offense with a child by an adult charge. The defendant was therefore impermissibly sentenced beyond the presumptive range for the lesser included offense of conviction. The Court of Appeals determined this was prejudicial error and vacated the defendant’s conviction of sexual offense with a child by an adult, remanding for resentencing on the first-degree sexual offense charge.

(3) The defendant argued that the trial court erred in certain evidentiary rulings. First, the defendant alleged that expert testimony regarding the DNA profile from the victim’s underwear (matching to the defendant) should not have been admitted because there was an insufficient foundation to satisfy the requirements of Rule 702(a)(3) of the North Carolina Rules of Evidence. The Court of Appeals disagreed, finding that the witness was “a qualified expert in the field of forensics and an employee at the North Carolina State Crime Lab, [who] testified to her qualifications in the area of DNA analysis as well as her training and experience in gathering evidence for DNA profiles.” Slip op. at 19. Further, the Court explained:

[The witness] thoroughly explained the methods and procedures of performing autosomal testing and analyzed defendant’s DNA sample following those procedures. That particular method of testing has been accepted as valid within the scientific community and is a standard practice within the state crime lab. Thus, her testimony was sufficient to satisfy Rule 702(a)(3). Id. at 21.

The defendant also argued that it was plain error to allow prior bad acts evidence under Rule 404(b) of the North Carolina Rules of Evidence, claiming that the prior incident was unrelated to the current offense. The Court of Appeals determined that the trial court did not err because the facts in both cases were similar enough to be admitted for 404(b) purposes. The trial court’s findings that “both females were strangers to defendant; they were separated from a group and taken to a more secluded location; they were touched improperly beginning with the buttocks; and they were told to be quiet during the assault,” supported the admission of this evidence under Rule 404(b). Id. at 23.

(4) Finally, the defendant argued that the trial court erred by allowing cross-examination of his father and contends the State elicited irrelevant testimony from his father. Specifically, the defendant objected to the admission of questions and testimony about whether the defendant’s father warned members of the church about the defendant’s potential dangerousness. The Court of Appeals rejected this argument and determined “the questions on cross-examination elicited relevant testimony and were well within the scope of defendant’s father’s direct testimony that defendant needed frequent supervision for basic activities.” Id. at 27-28.

Judge Murphy authored a separate opinion concurring in part, concurring in result only in part, and dissenting in part. Concerning the sexual offense jury instruction, Judge Murphy believed “the trial court erred in instructing the jury, however, since the jury found beyond a reasonable doubt Defendant was at least 18 years old in another portion of its verdict and all the charges against Defendant occurred on the same date, there was no plain error.” Slip op. at 5 (Murphy, J., dissenting). Judge Murphy also pointed out that “[h]ad the jury been correctly instructed on the first-degree kidnapping indictment language and found Defendant guilty of first-degree kidnapping based on sexual assault the trial court could not have sentenced Defendant for all the sexual offenses and the first-degree kidnapping offense without violating double jeopardy.” Id. at 13. Following the guidance of State v. Stinson, 127 N.C. App. 252, Judge Murphy believed that the court should have arrested judgment on the first-degree kidnapping conviction and remanded for resentencing on second-degree kidnapping to avoid double jeopardy issues. Lastly, Judge Murphy did not believe the defendant preserved the issue of his father’s testimony for review and would have refused to consider that argument.

In this case involving convictions for first-degree kidnapping and misdemeanor assault with a deadly weapon, among other offenses, the State presented sufficient evidence of the offenses and the trial court did not err by denying the defendant’s motion to dismiss on that basis.  With regard to the kidnapping conviction, the defendant argued that the State failed to present substantial evidence the defendant’s purpose was to terrorize the victim.  Recounting evidence that the defendant hid in the backseat of the victim’s car holding a knife while he waited for her to get off work, forced her to remain in the car and drive by choking her and threatening her with the knife, and forcefully struck her on the head when she attempted to scream for help, the court rejected this argument and bolstered its position by describing her frantic efforts to escape. 

The court also found sufficient evidence of misdemeanor assault with a deadly weapon under both the show of violence theory of assault and the act or attempt to do injury to another theory of assault.  The State’s evidence tended to show that after two men scuffled with the defendant in an attempt to aid the victim, the defendant jumped into the driver’s seat of the victim’s car and attempted to run the men over and nearly did so.  This was sufficient evidence of assault under either theory.

The evidence was sufficient to establish an intent to cause bodily harm or terrorize where the facts showed that after severely beating the victim, the defendants first attempted to stuff him into a garbage can and then threw him into a 10 or 12-foot-deep ditch filled with rocks and water; one defendant had been to the location several times and could have seen the ditch; and the victim could not recall anything after the assault began and was not struggling or moving during this process. This evidence supports a reasonable inference that the defendants intended to cause the victim serious bodily injury if they believed he was unconscious and unable to protect himself as he was thrown into the ditch, landing on rocks and possibly drowning. Alternatively, it supports a reasonable inference that the defendants intended to terrorize the victim if they believed him to be conscious and aware of being stuffed into a garbage can and then flung into a deep, rocky, water-filled ditch.

In this Warren County case, the Supreme Court affirmed the Court of Appeals decision finding that the second of defendant’s two kidnapping charges lacked support in the record and should have been dismissed because the rape supporting the kidnapping charge had already concluded before the events of the second kidnapping.

The two kidnapping charges against defendant arose from the rape of an 80-year-old woman in 2007. Defendant, posing as a salesman, forced his way into the victim’s home, robbed her of her cash, forced her from the kitchen into a bedroom, raped her, then tied her up and put her in a closet located in a second bedroom. The basis for the kidnapping charge at issue on appeal was tying up the victim and moving her from the bedroom where the rape occurred to the second bedroom closet. Defendant moved at trial to dismiss the charges for insufficiency of the evidence, and argued that there was no evidence in the record showing the second kidnapping occurred to facilitate the rape.

The Supreme Court agreed with the Court of Appeal majority that the record did not support the second kidnapping conviction. The court explored G.S. 14-39 and the relevant precedent regarding kidnapping, explaining that kidnapping is a specific intent crime and the state must allege one of the ten purposes listed in the statute and prove at least one of them at trial to support the conviction. Here, the state alleged “that defendant had moved the victim to the closet in the second bedroom for the purpose of facilitating the commission of rape.” Slip Op. at 30. At trial, the evidence showed that defendant moved the victim to the second bedroom “after he had raped her, with nothing that defendant did during that process having made it any easier to have committed the actual rape.” Id. Because the state only alleged that defendant moved the victim for purposes of facilitating the rape, the court found that the second conviction was not supported by the evidence in the record. The court also rejected the state’s arguments that State v. Hall, 305 N.C. 77 (1982) supported interpreting the crime as ongoing, overruling the portions of that opinion that would support interpreting the crime as ongoing. Slip Op. at 42.

Chief Justice Newby, joined by Justice Berger, dissented and would have allowed the second kidnapping conviction to stand. Id. at 45. 

On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 797 S.E.2d 324 (2017), the court reversed, holding that because there was evidence of restraint beyond that inherent in the commission of the sex offense the defendant could be convicted of both the sex offense and kidnapping. The defendant was convicted of a number of several offenses, including first-degree sexual offense and second-degree kidnapping. The Court of Appeals concluded that there was insufficient evidence of restraint separate and apart from that inherent in the sex offense to support the kidnapping conviction. The Supreme Court disagreed. Here, the defendant exercised restraint over the victim during the sexual offense. However, after that offense was completed, the defendant pulled the victim off the bed, causing his head to hit the floor, and called to an accomplice who then, with the defendant, physically attacked the victim, kicking and stomping him. These additional actions increased the victim’s helplessness and vulnerability beyond the initial attack that enabled the defendant to commit the sex offense. The court concluded: these actions constituted an additional restraint, which exposed the victim to greater danger than that inherent in the sex offense. For example, the victim testified that as a result of the kicking and stomping on his knees and legs, which had not been targeted or harmed during the sex offense, he was unable to walk for 2 to 3 weeks after the attack.

In this Durham County case, defendant appealed his convictions for first-degree kidnapping, three counts of assault, and interfering with emergency communications, arguing (1) he was prejudiced by not receiving a pretrial release hearing under G.S. 15A-534.1, (2) double jeopardy for his multiple assault convictions, (3) his conviction for assault by strangulation was improper, and (4) insufficient evidence to support his kidnapping conviction. The Court of Appeals found no prejudicial error.

In January of 2020, defendant and a woman he was living with began arguing, culminating in defendant headbutting the woman several times. Eventually defendant began beating the woman and dragged her by her hair, then throwing her and choking her in the bedroom. The woman eventually hid her child in a closet and jumped out of a window on the third-floor to escape defendant. The woman’s mother attempted to intervene but defendant struck her in the mouth, busting the mother’s lip. Defendant also took the mother’s phone and threw it away, but she retrieved it to call police. After defendant was arrested, the magistrate did not set bond on his kidnapping charge, determining it to be a domestic violence act, and ordered the State to produce defendant for a hearing on conditions of pretrial release. The State did not comply with this order, and defendant remained in custody, not posing bond on any of the charges. After remaining in custody from March to September of 2020, defendant filed a motion to dismiss his kidnapping charge, arguing G.S. 15A-534.1 required dismissal. Defendant’s charges were consolidated the next day with pretrial release conditions and a bond of $250,000; defendant did not post bond and remained in custody. The trial court also denied defendant’s motion to dismiss. Defendant reached trial in November 2021, and was convicted after a bench trial, receiving credit for time served. 

Considering (1), the Court of Appeals noted that the State admitted it did not hold the pretrial release hearing but explained the failure as inadvertent due to the onset of COVID-19. Analyzing the impact, the court explained “[t]he inadvertence does not excuse the State; rather, it is relevant to show the absence of a flagrant constitutional violation.” Slip Op. at 11. The court also noted defendant did not post bond after his initial arrest, and “even if the State had held a timely pretrial release hearing on the kidnapping charge, Defendant would not have been released.” Id. at 11. As a result, defendant could not show irreparable prejudice to the preparation of his case. 

Next the court considered (2), as defendant argued the events constituted one long assault. The court disagreed, explaining there was an “interruption in the momentum” and “a change in location” between the events of the three assaults. Id. at 14-15. The court held each offense was separate and distinct, and found no merit in defendant’s argument. The court applied the same analysis for (3), pointing to “a distinct interruption in the assaults” to justify defendant’s convictions for assault inflicting serious bodily injury as well as assault by strangulation. Id. at 16. 

Finally, the court took up (4), noting that defendant’s acts of confining and removing the victim represented separate and distinct acts from the underlying assaults, justifying the kidnapping charge. The court explained that “Defendant’s confinement of [the victim] by pulling her by the hair back into the bedroom, confining her in there by kicking at the locked door, and forcing her to escape by jumping from the third floor window, were separate, complete acts apart from Defendant’s other assaults upon her.” Id. at 19. 

The trial court did not err by denying the defendant’s motion to dismiss a charge of first-degree kidnapping which asserted that the State failed to present substantial evidence that the defendant did not release the victim in a safe place. The defendant held the victim at gunpoint and threatened to shoot him in the back if the victim did not repair his truck. While the victim was examining the truck, the defendant fired a shot into the asphalt near the victim’s feet. The defendant then turned his back and fired a second shot into the air. When the defendant turned away, the victim saw an opportunity to run away. The defendant never told or indicated to the victim that he was free to leave, nor gave any indication that he would not shoot the victim if he ran away. The mere act of an armed kidnapper turning his back does not constitute a conscious, willful act on the part of the kidnapper to assure his victim’s release in a place of safety.