Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/22/2021
E.g., 09/22/2021
State v. Phillips, 365 N.C. 103 (June 16, 2011)

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.

(1) Evidence at trial tended to show that after the victim requested a ride to Walmart and the community college because his car was in the shop for repair, the defendant, who was the victim’s cousin, and the defendant’s girlfriend drove the victim to a secluded area where the defendant robbed him at gunpoint.  Viewed in the light most favorable to the State, the victim’s testimony of the defendant’s claim of having to “make a quick stop somewhere” on the way to the community college from Walmart, where the victim had cashed a check for a significant amount of money, was sufficient evidence that the defendant unlawfully removed the victim by means of fraud and trickery, without the victim’s consent, for the purpose of committing armed robbery such that the trial court did not err by denying the defendant’s motion to dismiss for insufficient evidence.  As the court explained, the “[d]efendant’s misrepresentations regarding the parties’ ultimate destination enabled him to remove [the victim] to the secluded location, where [the] [d]efendant robbed him at gunpoint.” Slip op. at 19.

(2) The record was insufficient to enable review of the merits of the defendant’s ineffective assistance of counsel claim regarding his trial attorney’s failure to stipulate to a prior conviction and the court dismissed the claim without prejudice so that the defendant could reassert it in a MAR.

Vacating two of the defendant’s second-degree kidnapping convictions on grounds that the plain language of G.S. 14-39(a) does not permit prosecution of a parent for kidnapping, at least when that parent has custodial rights with respect to the children. The court explained:

“[T]here is no kidnapping when a parent or legal custodian consents to the unlawful confinement of his minor child, regardless whether the child himself consents to the confinement. The plain language requires that only one parent -- “a parent” -- consent to the confinement.

The court was careful to note “We do not address the question whether a parent without custodial rights may be held criminally liable for kidnapping.” (footnote 2).

The removal of the victim was without her consent when the defendant induced the victim to enter his car on the pretext of paying her money in exchange for sex, but his real intent was to assault her; a reasonable mind could conclude that had the victim known of such intent, she would not have consented to have been moved by the defendant.

There was sufficient evidence of confinement where the defendant entered a trailer, brandished a loaded shotgun, and ordered everyone to lie down. It was immaterial that the victim did not comply with the defendant’s order to lie down.

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 a kidnapping case, the trial court erred by submitting the theory of removal to the jury. Although evidence supported confinement and restraint, no evidence suggested that the defendant removed the victim in a case where the crime occurred entirely in the victim’s living room. The court stated: “where the victim was moved a short distance of several feet, and was not transported from one room to another, the victim was not ‘removed’ within the meaning of our kidnapping statute.”

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 trial court properly denied the defendant’s motion to dismiss a first-degree kidnapping charge. There was sufficient evidence that the defendant removed the victim for the purpose of terrorizing her where multiple witnesses heard the defendant threaten to kill her in broad daylight. The defendant assaulted the victim, placed her in headlock, and choked her. Evidence showed that the victim was in a state of intense fright and apprehension; several witnesses heard her yelling for help.

(1) The court rejected the defendant’s argument that kidnapping charges should have been dismissed because there was insufficient evidence that his purpose in confining the victims was to terrorize them. “A defendant intends to terrorize another when the defendant intends to place that person in some high degree of fear, a state of intense fright or apprehension.” (quotation omitted). The court rejected the defendant’s argument that the State had to prove that the kidnapping victims were terrorized; State only needs to prove that the defendant’s intent was to terrorize the victims. The evidence was sufficient for the jury to infer such an intent. That defendant shot victim Nancy’s truck parked outside the house so that everyone could hear it, cut the telephone line to the house at night, shot through the windows multiple times to break into the house, yelled multiple times upon entering the house that he was going to kill Nancy, corralled the occupants of the house into a single bedroom, demanded of those in the bedroom to know where Nancy was, exclaimed that he was going to kill her, and pointed his shotgun at them. (2) Vacating two of the defendant’s second-degree kidnapping convictions on grounds that the plain language of G.S. 14-39(a) does not permit prosecution of a parent for kidnapping, at least when that parent has custodial rights with respect to the children. The court explained:

“[T]here is no kidnapping when a parent or legal custodian consents to the unlawful confinement of his minor child, regardless whether the child himself consents to the confinement. The plain language requires that only one parent -- “a parent” -- consent to the confinement.

The court was careful to note “We do not address the question whether a parent without custodial rights may be held criminally liable for kidnapping.” (footnote 2).

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.

(1) The evidence was sufficient to establish that the defendant confined and restrained Victims Alvarez and Cortes for the purpose of terrorizing them and doing them serious bodily harm. The evidence was sufficient to establish a purpose of terrorizing Alvarez when the defendant beat and kicked Alvarez repeatedly while wrestling him to the floor; the defendant bound Alvarez’s hands and feet and placed a rag in his mouth; the defendant and an accomplice threatened to kill Alvarez; the defendant pulled Alvarez’s pants down, and the accomplice forced a bottle into his rectum; and Alvarez testified that he thought he was going to die. There was sufficient evidence as to the purpose of doing serious bodily harm to Alvarez given the sexual assault. As to Cortes, the defendant and the accomplice knocked him to the floor, and kicked him in the stomach repeatedly; Cortes was hog-tied so severely that his spine was fractured; he had lacerations to the lips and abrasions on his face, neck, chest, and abdomen; tissue paper was in his mouth; the spine fracture would have paralyzed the lower part of his body; and cause of death was a combination of suffocation and strangulation, with a contributing factor being the fracture of the thoracic spine. (2) The trial court’s instruction clearly and appropriately defined “terrorizing” and “serious bodily harm” as required for kidnapping. The trial court instructed that: “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, or doing serious bodily injury to that person. Serious bodily injury may be defined as such physical injury as causes great pain or suffering.”

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.

(1) The evidence was sufficient to establish that the defendant confined and restrained Victims Alvarez and Cortes for the purpose of terrorizing them and doing them serious bodily harm. The evidence was sufficient to establish a purpose of terrorizing Alvarez when the defendant beat and kicked Alvarez repeatedly while wrestling him to the floor; the defendant bound Alvarez’s hands and feet and placed a rag in his mouth; the defendant and an accomplice threatened to kill Alvarez; the defendant pulled Alvarez’s pants down, and the accomplice forced a bottle into his rectum; and Alvarez testified that he thought he was going to die. There was sufficient evidence as to the purpose of doing serious bodily harm to Alvarez given the sexual assault. As to Cortes, the defendant and the accomplice knocked him to the floor, and kicked him in the stomach repeatedly; Cortes was hog-tied so severely that his spine was fractured; he had lacerations to the lips and abrasions on his face, neck, chest, and abdomen; tissue paper was in his mouth; the spine fracture would have paralyzed the lower part of his body; and cause of death was a combination of suffocation and strangulation, with a contributing factor being the fracture of the thoracic spine. (2) The trial court’s instruction clearly and appropriately defined “terrorizing” and “serious bodily harm” as required for kidnapping. The trial court instructed that: “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, or doing serious bodily injury to that person. Serious bodily injury may be defined as such physical injury as causes great pain or suffering.”

State v. Huss, 367 N.C. 162 (Nov. 8, 2013)

The court per curiam, with an equally divided court, affirmed the decision below, State v. Huss, 223 N.C. App. 480 (2012). That decision thus is left undisturbed but without precedential value. In this case, involving charges of second-degree sexual offense and second-degree rape, the court of appeals had held that the trial court erred by denying the defendant’s motion to dismiss. The State proceeded on a theory that the victim was physically helpless. The facts showed that the defendant, a martial arts instructor, bound the victim’s hands behind her back and engaged in sexual activity with her. The statute defines the term physically helpless to mean a victim who either is unconscious or is physically unable to resist the sexual act. Here, the victim was not unconscious. Thus, the only issue was whether she was unable to resist the sexual act. The court of appeals began by rejecting the defendant’s argument that this category applies only to victims who suffer from some permanent physical disability or condition, instead concluding that factors other than physical disability could render a victim unable to resist the sexual act. However, it found that no such evidence existed in this case. The State had argued that the fact that the defendant was a skilled fighter and outweighed the victim supported the conclusion that the victim was physically helpless. The court of appeals rejected this argument, concluding that the relevant analysis focuses on “attributes unique and personal of the victim.” Similarly, the court of appeals rejected the State’s argument that the fact that the defendant pinned the victim in a submissive hold and tied her hands behind her back supported the conviction. It noted, however, that the evidence would have been sufficient under a theory of force. The defendant also was convicted of kidnapping the victim for the purpose of facilitating second-degree rape. The court of appeals reversed the kidnapping conviction on grounds that the State had proceeded under an improper theory of second-degree rape (the State proceeded on a theory that the victim was physically helpless when in fact force would have been the appropriate theory). The court of appeals concluded: “because the State proceeded under an improper theory of second-degree rape, we are unable to find that the State sufficiently proved the particular felonious intent alleged here.”

In April of 2007, the defendant came to the victim’s front door under the pretense of demonstrating a vacuum cleaner, but when she opened the door he forced his way inside, tied her up, robbed her, raped her, and left her bound in a closet. After the defendant left, the victim was able to free herself and call her family, who came to her home. The police arrived soon after and the victim was transported to a hospital, where a rape kit was collected and submitted to the SBI for analysis. A male DNA profile was recovered, but at the time there was no match. The victim, who was 80 years old at the time of the assault, died in 2015. A few months later, based on information from forensic investigators in New York, officers obtained a search warrant for the defendant’s DNA and determined it was a match to the sample recovered from the victim’s rape kit. The defendant was indicted for one count each of breaking and entering, common law robbery, assault with a deadly weapon inflicting serious injury, forcible sex offense, and first-degree rape, and two counts of first-degree kidnapping (one count for moving the victim to the back bedroom before the rape, and one count for moving her into a closet in another bedroom after the rape). The defendant was convicted at trial of all charges, and on appeal he asserted error in six areas.

First, the defendant argued that his motions to dismiss for insufficiency of the evidence should have been granted on the rape, kidnapping, and common law robbery charges. The appellate court concluded there was sufficient evidence to submit the rape charge to the jury, based on the victim’s statements, forensic evidence, and the injuries suffered by the victim. Similarly, based on evidence that the defendant stole jewelry off the victim’s person, along with cash and other property from her home, and did so by using force to restrain the victim, there was sufficient evidence to submit the common law robbery charge to the jury. However, the court agreed that there was insufficient evidence to submit the second kidnapping charge to the jury. Both kidnapping indictments alleged that the offenses were in the first-degree because they were done for the purpose of facilitating the commission of another felony – the rape. Finding State v. Morris, 147 N.C. App. 247 (2001) controlling, the court held that the second alleged kidnapping offense, in which the victim was placed in a closet, could not be for the purpose of facilitating the rape crime because it had already been completed. Although facilitating flight after the completion of a felony could also serve as a basis for first-degree kidnapping, that theory was not alleged in the indictment and the state was bound by the particular allegation made. Therefore, the court reversed as to the latter kidnapping conviction, and remanded for resentencing.

Second, the defendant challenged the trial court’s admission of expert testimony from a state’s witness about the sexual assault kit collection process. The defendant argued that the state failed to give notice of its proposed expert or her opinion, and further challenged the witness’s qualifications. Based on the witness’s experience and training in nursing, the appellate court held that the trial court properly exercised its discretion in allowing her testimony. To the extent that the state’s failure to give advance notice was a discovery violation, the trial court appropriately exercised its discretion by limiting the scope of the witness’s testimony. The defendant also contested the witness’s ability to authenticate the victim’s medical records or lay a foundation for their admission as business records. The appellate court disagreed, noting that the witness was a staff nurse at the hospital when the victim was treated, she was familiar with the records at issue, they were made contemporaneously with the victim’s care, and any otherwise inadmissible statements within the records were appropriately redacted.

Third, the defendant challenged the admission of testimony from several witnesses about statements made by the victim after the attack. Since this issue was not raised at trial, the appellate court reviewed only for plain error and found no merit to the argument. The court concluded that the disputed statements were not hearsay because they were either the testifying witness’s own observations or were not offered for the truth of the matter asserted, and the remaining challenged testimony was only corroborative of other evidence already admitted. 

Fourth, the defendant argued that the trial court erred by sentencing him for both first-degree rape and first-degree kidnapping, since the rape was used to elevate the kidnapping charge to first-degree. The state contended that this was merely a clerical error, since both charges were consolidated for sentencing. Citing precedent and legislative intent, the appellate court agreed with the defendant and remanded the case to the trial court to arrest judgment on one of the two offenses and only enter judgment on the other.

Finally, granting the defendant’s petition for writ of certiorari on this issue and reaching the merits, the court held that the civil judgment entered against the defendant for attorney’s fees was improperly imposed without giving the defendant notice and an opportunity to be heard. The fee application was submitted four days after the sentencing, and there was no indication in the record that the defendant had a meaningful opportunity to be heard as to the amount. The court vacated the civil judgment and remanded for a new hearing.

Judge Tyson concurred in part, but dissented on the issues of sufficiency of the evidence for the second kidnapping charge, sentencing the defendant for both the rape and kidnapping offenses, and the defendant’s challenge to the civil judgment for attorney’s fees.

State v. China, 370 N.C. 627 (Apr. 6, 2018)

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.

State v. Curtis, 369 N.C. 310 (Dec. 21, 2016)

The court per curiam affirmed the Court of Appeals, ___ N.C. App. ___, 782 S.E.2d 522 (2016). The Court of Appeals had held, over a dissent, that where the restraint and removal of the victims was separate and apart from an armed robbery that occurred at the premises, the trial court did not err by denying the defendant’s motion to dismiss kidnapping charges. The defendant and his accomplices broke into a home where two people were sleeping upstairs and two others--Cowles and Pina-- were downstairs. The accomplices first robbed or attempted to rob Cowles and Pina and then moved them upstairs, where they restrained them while assaulting a third resident and searching the premises for items that were later stolen. The robberies or attempted robberies of Cowles and Pina occurred entirely downstairs; there was no evidence that any other items were demanded from these two at any other time. Thus, the court could not accept the defendant’s argument that the movement of Cowles and Pina was integral to the robberies of them. Because the removal of Cowles and Pina from the downstairs to the upstairs was significant, the case was distinguishable from others where the removal was slight. The only reason to remove Cowles and Pina to the upstairs was to prevent them from hindering the subsequent robberies of the upstairs residents and no evidence showed that it was necessary to move them upstairs to complete those robberies. Finally, the court noted that the removal of Cowles and Pina to the upstairs subjected them to greater danger.

State v. Stokes, 367 N.C. 474 (Apr. 11, 2014)

The court reversed and remanded the decision below, State v. Stokes, 227 N.C. App. 649 (Jun. 4, 2013) (vacating the defendant’s conviction for second-degree kidnapping on grounds that the evidence was insufficient to establish removal when during a robbery the defendant ordered the clerk to the back of the store but the clerk refused). The court rejected the defendant’s argument that his removal of the victim was inherent in the robbery and thus could not support a separate kidnapping conviction. It explained:

Defendant ordered [the victim] at gunpoint to the back of the store and then into an awaiting automobile outside the store after stealing the cigarettes and money, the only two items defendant demanded during the robbery. At this point defendant was attempting to flee the scene of the crime. The armed robbery was complete, and defendant’s attempted removal of [the victim] therefore cannot be considered inherent to that crime. By ordering [the victim] into an awaiting automobile after completing the armed robbery, defendant attempted to place [the victim] in danger greater than that inherent in the underlying felony.

The trial court did not err by denying the defendant’s motion to dismiss a charge of second-degree kidnapping and did not commit plain error by failing to instruct the jury on the confinement theory of kidnapping alleged in the indictment.  The second-degree kidnapping indictment alleged that the defendant unlawfully confined the victim without consent and for the purpose of facilitating felony armed robbery.  In moving to dismiss the kidnapping charge, the defendant argued that the victim was not restrained to a degree over that inherent in the underlying robbery, which involved the defendant entering the victim’s bedroom while brandishing a gun and motioning for the victim to move from that room to another and ordering the victim to lie on the ground upon moving rooms.  Noting the State’s acknowledgement that the question of whether confinement or restraint is of a degree beyond that inherent in robbery such that a kidnapping conviction also is proper involves “a very tangled area of the law,” the court reviewed relevant precedent on its way to determining that there was no error in the defendant’s kidnapping conviction.  The court explained that the movement of the victim from his bedroom to the other room was not essential to complete the robbery, that the victim was held in the other room for some time, and was exposed to greater danger by being moved and held at gunpoint.

In response to the defendant’s argument that the trial court plainly erred by instructing the jury on kidnapping by restraint or removal but not confinement despite the indictment alleging kidnapping based solely on confinement, the court conducted a “highly fact sensitive” analysis and concluded that the defendant failed to show a possibility that a reasonable jury would have found that the victim in this case was removed or retrained but was not confined. 

Judge Murphy concurred in result only, expressing the view that the majority improperly equated removal and confinement when analyzing the defendant’s motion to dismiss the kidnapping charge.  Judge Murphy also expressed the view that the trial court erred in its jury instruction on kidnapping because the instruction did not track the indictment, but found that the error did not rise to the level of plain error.

The defendant was convicted of four counts of first-degree murder and other charges and appealed. He argued the trial court erred in denying his motion to suppress, his motion to dismiss, and in admitting certain evidence. The Court of Appeals unanimously affirmed.

The defendant objected that a charge of kidnapping should have been dismissed for failure to show confinement or restraint beyond that necessary for the accompanying robbery. “Whether a restraint was more than that which is an inherent or inevitable part of another felony depends on ‘whether the victim is exposed to greater danger than is inherent in the armed robbery itself.’” Here, the defendant assaulted, robbed, and murdered the victim’s boyfriend before walking her through the house at gunpoint and attempting to twice shoot her in the head before leaving (the gun malfunctioned). This was sufficient removal beyond what was necessary to accomplish the robbery. Those acts were not “inherent” to the robbery, and “increased [the victim’s] vulnerability and helplessness beyond what was necessary to enable the defendant to rob her.” The motion to dismiss was therefore properly denied.

In this kidnapping and sexual assault case, the evidence was sufficient to establish confinement or restraint for purposes of kidnapping that was separate and apart from the force necessary to facilitate the sexual offense. Here, the defendant forced the victim into his car after he had sexually assaulted her.

The trial court properly denied the defendant’s motion to dismiss a first-degree kidnapping charge. The restraint of the victim was not inherent in the also charged offense of assault by strangulation. The evidence showed two separate, distinct restraints sufficient to support the two offenses. After the initial restraint when the defendant choked the victim into unconsciousness, leaving her unresponsive on the ground, he continued to restrain her by holding her hair, wrapping his arm around her neck, and dragging her to a new location 100 to 120 feet away.

State v. Knight, 245 N.C. App. 532 (Feb. 16, 2016) modified and affirmed on other grounds, 369 N.C. 640 (Jun 9 2017)

(1) Where a kidnapping indictment alleged that the defendant confined and restrained the victim for purposes of facilitating a forcible rape, the State was not required to prove both confinement and restraint. (2) In a case where the defendant was charged with sexual assault and kidnapping, there was sufficient evidence of restraint for purposes of kidnapping beyond that inherent in the assault charge. Specifically, the commission of the underlying sexual assault did not require the defendant to seize and restrain the victim and to carry her from her living room couch to her bedroom.

In a case in which the defendant was convicted of kidnapping, rape and sexual assault, because the restraint supporting the kidnapping charge was inherent in the rape and sexual assault, the kidnapping conviction cannot stand. The court explained:

Defendant grabbed Kelly from behind and forced her to the ground. Defendant put his knee to her chest. He grabbed her hair in order to turn her around after penetrating her vaginally from behind, and he put his hands around her throat as he penetrated her vaginally again and forced her to engage him in oral sex. Though the amount of force used by Defendant in restraining Kelly may have been more than necessary to accomplish the rapes and sexual assault, the restraint was inherent “in the actual commission” of those acts. Unlike in Fulcher, where the victims’ hands were bound before any sexual offense was committed, Defendant’s acts of restraint occurred as part of the commission of the sexual offenses. (citation omitted).

The defendant’s conviction for kidnapping was improper where the restraint involved was inherent in two sexual assaults and an assault by strangulation for which the defendant was also convicted.

State v. Bell, 221 N.C. App. 535 (July 17, 2012)

(1) The defendant’s confinement of the victims was not inherent in related charges of armed robbery and sexual offense and thus could support the kidnapping charges. The defendant robbed the victims of a camera and forced them to perform sexual acts. He then continued to hold them at gunpoint while he talked to them about what had happened to him, grilled one about Bible verses, and made them pray with him. The additional confinement after the robbery and sex offenses were finished was sufficient evidence of kidnapping separate from the other offenses. (2) With respect to a charge of kidnapping a child under 16, there was sufficient evidence that the defendant confined the child. While threatening the child and his mother with a gun, the defendant told the mother to put her son in his room and she complied. After that, whenever her son called out, the victim called back to keep him in his bedroom.

The trial court erred by instructing the jury that it need only find that the restraint or removal aspect of the kidnapping “was a separate, complete act independent of and apart from the injury or terror to the victim.” As such, it did not distinguish between the restraint as a part of the kidnapping and any restraint or removal that was part of the assault or robbery of the victim. However, because the evidence indicates that the assault stopped before the victim’s removal, the court determined that this error was not prejudicial.

State v. Cole, 199 N.C. App. 151 (Aug. 18, 2009)

Because the restraint of the victim did not go beyond that inherent in the accompanying robbery, the kidnapping conviction could not stand. The victim was not moved to another location or injured and was held for only 30 minutes.

The trial court erred in denying the defendant’s motion to dismiss kidnapping charges where the removal and restraint of the victims was inherent in a charged robbery. Distinguishing cases where the victims were bound and physically harmed, the court noted that in this case, the victims only were moved from a bathroom area to the bathroom (a movement deemed merely a technical asportation), and were asked to lie on the bathroom floor until the robbery was complete. The removal and restraint did not expose the victims to greater danger than the robbery itself and thus were inherent in the robbery.

The evidence was sufficient to support a charge of kidnapping where the restraint used against the victim was not inherent in the assaults committed. The defendant kept the victim from leaving her house by repeatedly striking her with a bat. When she was able to escape, he chased her, grabbed her, and shot her. Detaining the victim in her home and again outside was not necessary to effectuate the assaults.

In a case in which the defendant was convicted of kidnapping and rape, the kidnapping conviction could stand where the confinement and restraint of the victim went beyond the restraint inherent in the commission of the rape. The defendant threatened the victim with a gun while she was in his car. When she tried to escape, he pulled her back into the car and sprayed her with mace. He drove her away from her car and children. When she jumped out, he forced her back into the car at gunpoint. He then drove her to a secluded wooded area, where he raped her.

The State conceded and the court held that by sentencing the defendant for both first-degree kidnapping and the underlying sexual assault that was an element of the kidnapping charge a violation of double jeopardy occurred. 

The trial court erred by convicting the defendant of both first-degree kidnapping and the sexual assault that raised the kidnapping to first-degree. The trial court instructed the jury that to convict defendant of first-degree kidnapping, it had to find that the victim was not released in a safe place, had been sexually assaulted, or had been seriously injured. The jury returned guilty verdicts for both first-degree kidnapping and second-degree sexual offense but did not specify the factor that elevated kidnapping to first-degree. The court concluded that it must construe the ambiguous verdict in favor of the defendant and assume that the jury relied on the sexual assault in finding the defendant guilty of first-degree kidnapping.

A defendant may be convicted of assault inflicting serious bodily injury and first-degree kidnapping when serious injury elevates the kidnapping conviction to first-degree.

The trial court properly denied the defendant’s motion to dismiss a first-degree kidnapping charge. The trial court did not err by failing to instruct the jury on the lesser-included offense of false imprisonment where substantial evidence showed that the defendant threatened and terrorized the victim.

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.

The trial court properly denied the defendant’s motion to dismiss a first-degree kidnapping charge. The defendant did not leave the victim in a safe place where he dragged her to the middle of a gravel driveway and left her, unconscious and injured. The defendant did not consign her to the care of the witnesses who happened to be nearby; he was running away because they saw him. Additionally, the defendant took one of her cell phones, perhaps not realizing that she had a second phone. Additionally, the statute requires finding either that the victim was not left in a safe place or that the victim suffered serious injury (or sexual assault, not at issue here). Here, the State’s evidence established that the victim suffered serious injury requiring emergency room treatment, as well as serious emotional trauma which required therapy for many months continuing through the time of trial.

In this kidnapping case, there was sufficient evidence that the defendant failed to release the victim in a safe place. The defendant left the victim in a clearing in the woods located near, but not easily visible from, a service road that extended off an interstate exit ramp. The area was described at trial as “very, very remote,” “very, very secluded” and almost impossible to see from the highway. The victim “in a traumatized state, had to walk out of the clearing, down an embankment, and across a four-lane highway to get to her apartment. Defendant did not take any affirmative steps to release [her] in a location where she was no longer exposed to harm. He chose to abandon [her] in the same secluded location he had chosen to assault her.”

A person who is killed in the course of a kidnapping is not left in a safe place. Alternatively, if the victim still was alive when left by the defendant and his accomplice, he was not left in a safe place given that he was bound so tightly that he suffered a fracture to his spine and ultimately suffocated.

The fact that the state proceeded on a theory of acting in concert does not require the conclusion that the defendants released the victim in a safe place simply because one of the other perpetrators arguably did so. The record contained substantial evidence that defendants did not undertake conscious, willful action to assure that the victim was released in a safe place.

The trial court properly denied the defendant’s motion to dismiss a first-degree kidnapping charge. The defendant did not leave the victim in a safe place where he dragged her to the middle of a gravel driveway and left her, unconscious and injured. The defendant did not consign her to the care of the witnesses who happened to be nearby; he was running away because they saw him. Additionally, the defendant took one of her cell phones, perhaps not realizing that she had a second phone. Additionally, the statute requires finding either that the victim was not left in a safe place or that the victim suffered serious injury (or sexual assault, not at issue here). Here, the State’s evidence established that the victim suffered serious injury requiring emergency room treatment, as well as serious emotional trauma which required therapy for many months continuing through the time of trial.

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