State v. French
| Decision Date | 06 October 2020 |
| Docket Number | No. COA19-968,COA19-968 |
| Citation | 849 S.E.2d 360 |
| Parties | STATE of North Carolina v. Timothy David FRENCH, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Special Deputy Attorney Brenda Menard, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R. Grant, for Defendant-Appellant.
A thief who led law enforcement officers on a high-speed chase after discovering a three-year-old child in the back seat of the truck he had stolen was properly convicted of larceny of a motor vehicle, first-degree kidnapping, and abduction of a child.
Timothy David French ("Defendant") petitions this Court from a judgment following a jury verdict finding him guilty of larceny of a motor vehicle, possession of stolen property, abduction of a child, first-degree kidnapping, and obtaining habitual felon status. Defendant asserts that the trial court erred by denying his motion to dismiss the child abduction charge when the State failed to show evidence of Defendant's intent to abduct the child, by instructing the jury on theories of kidnapping not contained in the indictment, and by entering a judgment on verdicts for both larceny and possession of the same stolen property.
After careful review, we hold that Defendant has failed to show error in the denial of Defendant's motion to dismiss as to the abduction charge, or that the trial court committed plain error by instructing on theories for kidnapping not alleged in the indictment. The State concedes and we hold that the trial court erred by entering judgment on verdicts for both larceny and possession of the same stolen property.
The evidence presented at trial tends to show the following:
On the morning of 17 December 2016, a three-year-old child was strapped into a car seat in the back of his father's truck at a gas station on Gastonia Highway. The two were on their way to a parade. The father ran inside to make a purchase. The truck remained in the father's view while he was inside the store, but when he looked away for "a split second," Defendant got into the driver's seat of the truck and sped off. The child's father ran outside screaming that his son was still in the truck and a bystander promptly called 911.
Police arrived at the gas station, obtained a description of the truck and the child, and sent a message to law enforcement to be on the lookout for both. An officer nearby saw a vehicle matching the description circulated by law enforcement and began to follow the truck. After calling in the license plate number, he confirmed it was the truck with the child likely still inside. Defendant drove normally until the officer turned on his blue lights. Defendant then accelerated, passing the car in front of him on the three-lane-road. Defendant proceeded to lead police on a high-speed chase, exceeding 100 miles-per-hour, crossing the median several times, and traversing state lines.
During the chase, Defendant called 911. He identified himself as the driver of the truck and told the operator there was a child in the back seat of the vehicle. Defendant claimed he mistakenly thought the truck was his "buddy's" and that this was all a "prank" that had gone "south." Defendant tried to bargain with the operator because he "didn't want the kid to get hurt," saying he would let "the kid" out if the officers stopped chasing him. He refused to pull over despite the operator's repeated pleas to do so. Defendant eventually hung up and continued to drive at excessive speeds for fifteen more minutes, driving into oncoming traffic at least once.
In total, Defendant drove approximately 23 miles for at least 20 minutes with the child in the truck before jumping a curb and getting stuck in a wooded area. Defendant attempted to reverse the truck, spinning the wheels. He then tried to escape on foot and was quickly apprehended by law enforcement officers. The child was still secured in his car seat and "appeared well." Defendant told officers that he had been unaware the child was in the truck at the time he initially drove away. He said he "wanted to make a deal" and provide information about other crimes but did not make any other statements to arresting officers.
On 8 May 2017, a Lincoln County grand jury indicted Defendant on one count each of first-degree kidnapping, abduction of a child, larceny of a motor vehicle, possession of stolen property, and obtaining habitual felon status. At the pre-trial charge conference, parties agreed to instruct the jury solely on the "removal" theory for first-degree kidnapping, reflecting the language of the indictment. Defendant's trial began on 27 November 2017.
At trial, the prosecutor requested jury instructions on all three theories of kidnapping—confinement, restraint, and removal—to which Defendant's counsel responded, "I mean, it's not going to matter to me." The jury found Defendant guilty on all charges on 29 November 2017. Defendant then pled guilty to attaining status as an habitual felon. The trial court consolidated the convictions to a single judgment, sentenced Defendant to a term of 82 to 159 months of imprisonment, and ordered Defendant to register as a sex offender for 30 years upon release. Defendant did not give oral or written notice of appeal. On 7 December 2018, Defendant filed a Petition for Writ of Certiorari with this Court, which was allowed on 20 December 2018.
Defendant asserts that the trial court erred in denying his motion to dismiss the child abduction charge because the State did not establish that Defendant acted with the requisite intent to abduct the child. Defendant also argues that the trial court committed plain error in failing to instruct the jury on a scienter requirement. After careful review, we disagree.
We review a trial court's denial of a motion to dismiss de novo. State v. McKinnon , 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982). We consider whether, viewed in the light most favorable to the State and giving the State the benefit of all reasonable inferences, the jury was presented with substantial evidence of each element of the offense charged. State v. Herring , 322 N.C. 733, 738, 370 S.E.2d 363, 367 (1988). Defining the elements of our child abduction statute also presents a question of law subject to de novo review. State v. Jones , 237 N.C. App. 526, 530, 767 S.E.2d 341, 344 (2014).
Defendant argues that the child abduction statute requires the State to show substantial evidence of Defendant's "willfulness" in abducting the child. The plain language of the statute compels us to disagree.
Our General Statutes provide:
Any person who, without legal justification or defense, abducts or induces any minor child who is at least four years younger than the person to leave any person, agency, or institution lawfully entitled to the child's custody, placement, or care shall be guilty of a Class F felony.
N.C. Gen. Stat. § 14-41(a) (2019).
Certainly, a "common law presumption against criminal liability without a showing of mens rea " exists. State v. Huckelba , 240 N.C. App. 544, 552, 771 S.E.2d 809, 816 (2015), rev'd on other grounds , 368 N.C. 569, 780 S.E.2d 750 (2015). "Moreover, strict liability crimes are disfavored." State v. Bowman , 188 N.C. App. 635, 650, 656 S.E.2d 638, 650 (2008). However, in asking us to read a requirement of "willfulness" into Section 14-41, Defendant creates a false dichotomy between a strict liability offense and one requiring a specific intent, omitting the plausible alternative that the General Assembly meant for the abduction of a child to be a general intent crime.
Defendant interprets Section 14-41 ’s narrowed criminal liability for abduction "without legal justification or defense" to include the element of willfulness, relying on this Court's definition of willfulness as "the wrongful doing of an act without justification or excuse , or the commission of an act purposely and deliberately in violation of law." State v. Arnold , 264 N.C. 348, 349, 141 S.E.2d 473, 474 (1965) (emphasis added). The State responds with a more probable explanation—that "without legal justification and defense" extends certain legal defenses like mistake of fact, necessity, or justification to those charged with abduction of a child. See State v. Walker , 35 N.C. App. 182, 186, 241 S.E.2d 89, 92 (1978) (). We agree with Defendant that the General Assembly did not intend to make abduction of a child a strict liability offense because the statute includes legal defenses that negate a defendant's criminal liability through the language "without legal justification and defense." But we disagree with Defendant's argument that the legislature must have intended to make it a specific intent crime.
State v. Barnes addressed a similar argument by a defendant that because the crime was not one of strict liability, it required some showing of specific intent. 229 N.C. App. 556, 560-63, 747 S.E.2d 912, 916-18 (2013). We agreed with the defendant that the crime in question was not a strict liability crime, but rejected his specific intent argument. Id. at 560-61, 747 S.E.2d at 916-17. Absent any indication to the contrary in the statute, we held that the crime in question was merely one of general intent, which required only a "knowing" mens rea and allowed a defendant to avoid liability through, for example, a mistake of fact defense. Id. at 562, 747 S.E.2d at 917-18. A requirement that a defendant act "willfully" creates a specific intent crime. State v. Creech , 128 N.C. App. 592, 598, 495 S.E.2d 752, 756 (1998) ; State v. Eastman , 113 N.C. App. 347, 353, 438 S.E.2d 460, 463 (1994).
The General Assembly is capable of imposing a specific intent, like that of willfulness, in...
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