State v. Stokley, ___ N.C. App. ___, 2021-NCCOA-71 (Mar. 16, 2021)

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.