In re B.D.W.

• Citation: 625 S.E.2d 558
• Decision Date: 07 February 2006
• Docket Number: No. COA05-388.,COA05-388.
• Court: Court of Appeal of North Carolina (US)
• Parties: In the Matter of B.D.W.

625 S.E.2d 558

In the Matter of B.D.W.

No. COA05-388.

Court of Appeals of North Carolina.

February 7, 2006.

Appeal by juvenile from an order entered 21 July 2004 by Judge Marcia H. Morey in Durham County District Court. Heard in the Court of Appeals 16 November 2005.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Alexander M. Hightower, for the State.

Russell J. Hollers, III, Carborro, for juvenile-appellant.

HUNTER, Judge.

B.D.W., a juvenile, appeals from a final order adjudicating him delinquent on two counts of second degree kidnapping, one count of common law robbery, and two counts of simple assault. For the reasons stated herein, we vacate the adjudications of delinquency as to the two counts of second degree kidnapping.

The State presented evidence tending to show that on 21 June 2004, B.D.W., a thirteen-year-old male, gained access along with two other male juveniles to a neighborhood pool by climbing a fence. Two other boys, C.S., an eleven-year-old, and H.W., a thirteen-year-old, were already swimming at the pool. C.S. and H.W. attempted to leave the pool, but were threatened by B.D.W. and the other juveniles and forced into the girls' bathroom.

B.D.W. took a hat and the access key to the pool from H.W. and a bicycle from C.S. B.D.W. then blocked the bathroom door while the other juveniles forced C.S. and H.W. to remove their clothes, kiss one another, and lick one another's bodies, including genitalia. B.D.W. and another juvenile also hit C.S. and H.W. in the face and body before releasing them. The hat and key were recovered from B.D.W. B.D.W. testified at the hearing.

The trial court adjudicated B.D.W. delinquent as to two counts of kidnapping, two counts of assault, and one count of common law robbery. After a dispositional hearing, the trial court ordered B.D.W. committed to the Department of Juvenile Justice for confinement in a Youth Detention Center for not less than sixteen months. B.D.W. appeals.

I.

B.D.W. contends the trial court erred in adjudicating B.D.W. delinquent on the charges of second degree kidnapping as the indictment failed to allege all elements of the crime. We agree.

"When a petition is fatally deficient, it is inoperative and fails to evoke the jurisdiction of the court." In re J.F.M. & T.J.B., 168 N.C.App. 143, 150, 607 S.E.2d 304, 309, appeal dismissed and disc. review denied, 359 N.C. 411, 612 S.E.2d 320 (2005). "Because juvenile petitions are generally held to the standards of a criminal indictment, we consider the requirements of the indictments of the offenses at issue." Id.

B.D.W. was charged with second degree kidnapping under N.C. Gen.Stat. § 14-39 (2005). Section 14-39 sets out the elements of kidnapping as follows:

(a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person, or any other person under the age of 16 years without the consent of a parent or legal custodian of such person, shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:

(1) Holding such other person for a ransom or as a hostage or using such other person as a shield; or

(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; or

(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person; or

(4) Holding such other person in involuntary servitude in violation of G.S. 14-43.2.

Id. "Since kidnapping is a specific intent crime, the State must prove that the defendant unlawfully confined, restrained, or removed the person for one of the eight purposes set out in the statute." State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986). "The indictment in a kidnapping case must allege the purpose or purposes upon which the State intends to rely, and the State is restricted at trial to proving the purposes alleged in the indictment." Id.

Here, the petition for delinquency states that "the juvenile unlawfully, willfully and feloniously, did: . . . kidnap H.W.[,] a person under the age of 16 years by unlawfully restraining him without the consent of his parent or legal guardian pursuant to G.S. 14-39." An otherwise identical petition naming C.S. as the victim was submitted for the second charge of second degree kidnapping. The indictments here fail to set out one of the eight purposes required by statute for proof of kidnapping, and are therefore fatally defective.

The State contends that the failure to include the purpose for which the kidnapping was conducted is not fatally defective, as sufficient notice of the element was provided by the accompanying petitions alleging common law robbery and sex offense arising from the same transaction. Our Court has previously addressed this argument and found it to be without merit.

In State v. Moses, 154 N.C.App. 332, 572 S.E.2d 223 (2002), the defendant was indicted for two charges arising from the same transaction, robbery with a dangerous weapon, and assault with a deadly weapon inflicting serious injury. Id. at 335-36, 572 S.E.2d at 226. The indictment for assault with a deadly weapon was defective as it failed to identify the deadly weapon used in the assault. Id. at 336, 572 S.E.2d at 226. However, the indictment for robbery with a dangerous weapon identified the weapon as a bottle, and the State contended the defendant was therefore properly given notice as to the element of the deadly weapon in the assault charge. Id. Moses recognized that "`[i]t is settled law that each count of an indictment containing several counts should be complete in itself.'" Id. at 336, 572 S.E.2d at 226 (citations omitted). Moses held that although "allegations in one count may be incorporated by reference in another count[,]" id. at 336, 572 S.E.2d at 226-27, when an indictment fails to include an essential element and does not incorporate by reference another indictment, the indictment "does not adequately enable defendant to prepare for trial and avoid the possibility of double jeopardy, or allow the court to enter judgment on the offense." Id. at 337, 572 S.E.2d at 227.

As in Moses, the petition here failed to include an essential element and did not incorporate by reference the other petitions alleging common law robbery and sex offense. As "`each count of an indictment containing several counts should be complete in itself[,]'" and the petitions here as to kidnapping omitted an...