State v. Pender, 243 N.C. App. 142 (Sept. 1, 2015)

(1) Indictments charging kidnapping with respect to victims under 16 were not defective. The indictments alleged that the defendant unlawfully confined and restrained each victim “without the victim’s consent.” The court rejected the defendant’s argument that because the indictments failed to allege a lack of parental or custodial consent, they were fatally defective. The court explained:

“’[T] he victim’s age is not an essential element of the crime of kidnapping itself, but it is, instead, a factor which relates to the state’s burden of proof in regard to consent. If the victim is shown to be under sixteen, the state has the burden of showing that he or she was unlawfully confined, restrained, or removed from one place to another without the consent of a parent or legal guardian. Otherwise, the state must prove that the action was taken without his or her own consent.’” (quoting State v. Hunter, 299 N.C. 29, 40 (1980)).

The court concluded: “Because age is not an essential element of the crime of kidnapping, and whether the State must prove a lack of consent from the victim or from the parent or custodian is contingent upon the victim’s age, … the indictments … are adequate even though they allege that the victim ─ and not the parent ─ did not consent.” (2) The court rejected the defendant’s argument that there was a fatal variance between a kidnapping indictment with respect to victim D.M. and the evidence at trial. The defendant argued that the indictment alleged that D.M. was at least 16 years old but the evidence showed that D.M. was 16 at the time. The court concluded: “because D.M.’s age does not involve an essential element of the crime of kidnapping, any alleged variance in this regard could not have been fatal.”