State v. Guice, No. COA99-1261.

CourtCourt of Appeal of North Carolina (US)
Citation541 S.E.2d 474,141 NC App. 177
Docket NumberNo. COA99-1261.
PartiesSTATE of North Carolina v. Eric Earl GUICE.
Decision Date29 December 2000

Attorney General Michael F. Easley, by Special Deputy Attorney General James P. Longest, Jr., for the State.

Rudolf Maher Widenhouse & Fialko, by Christopher C. Fialko, Charlotte, for the defendant-appellant.

WYNN, Judge.

Following his trial, a jury convicted the defendant of various offenses stemming from events which occurred on 19 July 1998. He appeals from his conviction and sentence.

In the summer of 1997, the defendant met and befriended Kris Wall. Around November of that year, Ms. Wall separated from her husband. The nature of the relationship between the defendant and Ms. Wall is controverted; but, the record on appeal shows that Ms. Wall made attempts to end their relationship sometime during the late spring or early summer of 1998. In May 1998, Ms. Wall gave birth to a son.

On 19 July 1998, the defendant called Ms. Wall around 5 a.m. and again around 10:30 a.m. Shortly thereafter, the defendant arrived at Ms. Wall's house, entering unannounced and uninvited, and confronted her. The two argued and Ms. Wall fled from her house, with the defendant in pursuit. Clothed only in a t-shirt, Ms. Wall ran into the home of Michael Lawing, whose front door was open, and the defendant followed her inside. While pointing a gun at Mr. Lawing, the defendant ordered Mr. Lawing to lie face down on the floor. After Mr. Lawing complied with this order, the defendant and Ms. Wall continued to argue in Mr. Lawing's house.

The defendant then dragged Ms. Wall outside. After Ms. Wall refused to leave with the defendant, he retrieved his keys from Ms. Wall's house and departed. Shortly thereafter, John Ruisi, a police officer employed with the Charlotte Mecklenburg Police Department, arrived and spoke with Ms. Wall. The defendant called Ms. Wall and spoke with Officer Ruisi. Officer Ruisi later took Ms. Wall to the hospital, where he prepared a written statement for her which she signed. The defendant turned himself in later that day.

In August 1998, the defendant was indicted for multiple offenses, including assault by pointing a gun, communicating threats, assault on a female, damage to personal property, and possession of a firearm by a felon. In June 1999, the defendant was indicted for second-degree kidnaping under a superceding indictment arising out of the same events. At the close of the State's evidence, the trial court dismissed the damage to personal property charge but denied the defendant's motion to dismiss the charge of second-degree kidnaping. On 22 June 1999, the jury returned verdicts of guilty on the remaining charges and the trial court entered judgment accordingly. After consolidating the cases under the second-degree kidnaping charge for sentencing purposes, the trial court enhanced the defendant's sentence for the kidnaping conviction under the firearm enhancement statute, N.C.Gen.Stat. § 15A-1340.16A (Supp.1996).

The defendant appealed, asserting as assignments of error that the trial court erred in: (1) denying his motion to dismiss the charge of second-degree kidnaping; (2) enhancing his sentence on the count of second-degree kidnaping under the firearm enhancement provision found in N.C.Gen.Stat. § 15A-1340.16A; (3) allowing into evidence alleged hearsay statements of Ms. Wall; and (4) refusing to permit him to introduce evidence of a specific prior bad act of Ms. Wall. The defendant has also filed a motion for appropriate relief in light of the United States Supreme Court's recent decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). We find no error in the trial, but remand for resentencing.

First, the defendant argues that the State failed to prove the specific intent necessary to support a conviction for second-degree kidnaping; specifically, that he unlawfully confined, restrained or removed Ms. Wall for the purpose of terrorizing her. We disagree.

As kidnaping is a specific intent crime, the State bears the burden of proving that the defendant "unlawfully confined, restrained, or removed the [victim] 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); see N.C.Gen.Stat. § 14-39 (Supp.1996). "The indictment in a kidnaping 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." Moore, 315 N.C. at 743,340 S.E.2d at 404.

N.C.Gen.Stat. § 14-39 provides in relevant part that:

(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,... shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of: ...
(3) [T]errorizing the person so confined, restrained or removed ...;
(b) There shall be two degrees of kidnapping as defined by subsection (a).... If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree and is punishable as a Class E felony.

N.C.Gen.Stat. § 14-39. The superceding indictment for second-degree kidnaping in the present case stated the following:

The jurors for the State upon their oath present that on or about the 19th day of July, 1998, in Mecklenburg County, Eric Earl Guice did unlawfully, wilfully and feloniously kidnap Kris Lavanta Wall, a person who had attained the age of sixteen (16) years, by unlawfully confining, restraining and removing her from one place to another, without her consent, and for the purpose of terrorizing.

The State was therefore limited at trial to proving that the defendant acted with the specific purpose of terrorizing Ms. Wall, and the jury was only allowed to convict the defendant on that theory. See Moore, 315 N.C. at 743,

340 S.E.2d at 404; see also State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981),

cert. denied, 463 U.S. 1213, 103 S.Ct. 3552, 77 L.Ed.2d 1398, reh'g denied, 463 U.S. 1249, 104 S.Ct. 37, 77 L.Ed.2d 1456 (1983).

In reviewing the trial court's denial of the defendant's motion to dismiss for insufficiency of the evidence to sustain a conviction, "we must examine the evidence adduced at trial in the light most favorable to the State to determine if there is substantial evidence of every essential element of the crime." State v. McKinnon, 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982). Substantial evidence is that which a reasonable person would consider adequate to support the conclusion that each essential element exists. Id. Ill short, we must determine "whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Barnette, 304 N.C. 447, 458, 284 S.E.2d 298, 305 (1981) (citations omitted).

In determining whether there was sufficient evidence to support the jury's conclusion that the defendant sought to terrorize Ms. Wall, "the test is not whether subjectively [Ms. Wall] was in fact terrorized, but whether the evidence supports a finding that the defendant's purpose was to terrorize her." Moore, 315 N.C. at 745, 340 S.E.2d at 405. Terrorizing requires more than just putting Ms. Wall in a state of fear; it requires "putting [her] in some high degree of fear, a state of intense fright or apprehension." Id. (citing State v. Jones, 36 N.C.App. 447, 244 S.E.2d 709 (1978)). The defendant's intent or purpose to terrorize Ms. Wall, or the absence of such intent or purpose, may be inferred from the circumstances surrounding the alleged crime. State v. White, 307 N.C. 42, 48, 296 S.E.2d 267, 271 (1982).

When viewed in the light most favorable to the State, the evidence presented at trial showed that the defendant called Ms. Wall twice and entered her home uninvited and unannounced despite her threats to call the police. Ms. Wall testified that the defendant punched her repeatedly in the face and pointed a gun in her face, and demanded that she give him the gun she kept in her house. After she complied with this demand, Ms. Wall—clothed only in a t-shirt—fled to Mr. Lawing's house, where she was pursued and tracked down by the defendant. The defendant entered Mr. Lawing's house in pursuit of Ms. Wall, pointed a gun at him—a total stranger—and forced him to lie down on the floor. The defendant struggled further with Ms. Wall, pushed a table against her, choked her, and dragged her outside. After Ms. Wall again implored the defendant to leave, the defendant finally departed. During the course of the struggle with the defendant, Ms. Wall suffered multiple bumps on her head, bruises on her arms, and fractured ribs. We conclude that the State presented substantial evidence from which a rational trier of fact could have found beyond a reasonable doubt that the defendant acted with the purpose of terrorizing Ms. Wall.

The defendant next contends that the trial court erred by enhancing his sentence for the second-degree kidnaping conviction as a result of his use of a firearm during the crime. Upon the jury returning guilty verdicts on all charges, the trial court held a sentencing hearing and consolidated all charges under the second-degree kidnaping charge for sentencing purposes. The trial court sentenced the defendant to a minimum term of 29 months imprisonment for the kidnaping conviction, and enhanced the sentence, citing N.C.Gen.Stat. § 15A-1340.16A, by 60 additional months for a minimum of 89 months imprisonment.

N.C.Gen.Stat. § 15A-1340.16A provides in part that:

(a) If a person is convicted of a Class ... E felony and the court finds that the person used, displayed, or threatened to use or display a firearm at the time of the felony, the court shall increase the minimum

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