State v. Moore

• Citation: 315 N.C. 738,340 S.E.2d 401
• Decision Date: 18 February 1986
• Docket Number: No. 285PA85,285PA85
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Jackie Darrell MOORE.

Page 401

340 S.E.2d 401

315 N.C. 738

STATE of North Carolina v. Jackie Darrell MOORE.

No. 285PA85.

Supreme Court of North Carolina.

Feb. 18, 1986.

Lacy H. Thornburg, Atty. Gen., by Dennis P. Myers, Asst. Atty. Gen., Raleigh, for State.

Malcolm Ray Hunter, Jr., Acting Appellate Defender by Gordon Widenhouse, Asst. Appellate Defender, Raleigh, for defendant-appellee.

BILLINGS, Justice.

Although the defendant contended in the Court of Appeals that the evidence was insufficient to justify submission of the kidnapping charge to the jury on any theory, after the Court of Appeals awarded the defendant a new trial on the ground that there was insufficient evidence to support the charge of kidnapping upon the theory that the defendant confined or removed the victim for the purpose of holding her as a hostage, it declined to consider the sufficiency of the evidence on the other theories, saying: "Having awarded a new trial we need not reach the other issues brought forth by the defendant." 74 N.C.App. at 469, 328 S.E.2d,at 867.

The State appealed the award of the new trial, and the defendant asked us to determine whether the two other theories of kidnapping on which the jury was instructed were supported by the evidence. We conclude that although there was sufficient evidence to support the verdict upon two theories under the kidnapping statute (that the defendant's purpose was to hold the victim as a hostage and to terrorize her), there was insufficient evidence to support a verdict upon the theory that the defendant confined or removed the victim for the purpose of doing serious bodily harm. Because the jury was instructed on all three theories, we are unable to determine whether the verdict was based upon the theory which was not supported by the evidence. Therefore, we modify and affirm the decision of the Court of Appeals to grant the defendant a new trial.

The evidence offered at trial tended to show the following facts:

The defendant, Jackie Darrell Moore, and the victim, Priscilla Moore, were married in 1973. Three children were born of the marriage. In September 1983 the parties separated, and the victim and the two daughters moved into her parents' home. The couple's three-year-old son, Josh, stayed with the defendant. On 3 October 1983 at approximately 5:10 p.m. as the victim was leaving her place of employment, she saw the defendant sitting in his car in her employer's parking lot. Josh was also in the car and called out to his mother. The victim approached the car, lifted Josh out through the window, and started to leave with him, saying to the defendant that he could pick Josh up later at her mother's house. The defendant ordered her to put the child back into the car and to get into the front seat. The victim placed the child back into the car but refused to get into the vehicle. The defendant then picked up a rifle, pointed it at the victim and again ordered her into the car. The victim refused and ducked beside the car. The defendant then exited the vehicle and attempted to push the victim into the car. When she continued to resist, the defendant struck her in the head with the butt of the rifle. The victim then got into the car. As the defendant was getting back into the car, the victim attempted to flee, but the defendant caught her, struck her with the rifle again and returned her to the car. These blows opened a wound in the victim's head which required nine stitches to close.

The defendant then drove the victim to a trailer which was their former marital home. As they were driving, the victim told her husband he was going to have to take her to a hospital to get her head sewn up. He refused but said that he would take care of her when he got her home. When they pulled into the driveway at the trailer, the defendant told the victim that he would shoot her if she tried to run. They went inside and he washed off her head and made an ice pack for her. The victim convinced the defendant to let her call her parents; she told her father she needed medical treatment. Her father said help was on the way.

During the period the couple and their son were in the trailer, a little less than three hours, the defendant received several phone calls. The victim testified about the defendant's side of a telephone conversation in which the defendant said he did not want to go to jail and that he was not coming out unless they promised him he would not go to jail. The victim testified that at one point the defendant was talking on the phone with his brother and said that the victim was trying to take away his kids and that he would kill her first before she did that. The defendant held a gun almost constantly when the parties were inside the trailer and threatened to kill himself several times. At one point, he asked the victim to pull the trigger to kill him. The victim testified that she was convinced the defendant would have shot her had she tried to leave the trailer.

An ambulance arrived and two men came to the door, but the defendant did not let them in. Shortly thereafter the defendant's brother arrived and talked to the defendant, who refused to let anyone in and refused to let anyone leave the trailer. Finally, the defendant agreed to let one emergency medical technician in. The person who went in was a police officer dressed as an ambulance service member. After frisking him for weapons, the defendant let the officer remain inside long enough to dress the victim's wound. The defendant kept a rifle pointed at the officer or at the victim while the officer was inside the house. He complained of pain in his chest but did not want to go to the hospital and would not let the officer take Josh or the victim out of the trailer.

Eventually, after the victim assured the defendant that she would stay with him and stand by him while he got help, he agreed to leave the trailer. The defendant, the victim and Josh came out of the trailer at 8:14 p.m., and the defendant was taken into custody.

The defendant testified in his own behalf. He stated that he and his wife had separated on a previous occasion, and that when she left him the second time he begged her to change her mind. He admitted going to her place of employment on 3 October 1983, but stated that his intention was only to talk to her and convince her to come back and live with him. When she began to run away, he struck her with the gun. He helped her into the car and drove to the trailer because he was scared.

Kidnapping is defined by statute 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 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, restraining [sic] or removed or any other person.

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

(b) There shall be two degrees of kidnapping as defined by subsection (a). If the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree and is punishable as a Class D felony. 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.G.S. § 14-39 (1981 and Cum.Supp.1985).

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. 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. State v. Brown, 312 N.C. 237, 321 S.E.2d 856 (1984), 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, rehearing denied, 463 U.S. 1249, 104 S.Ct. 37, 77 L.Ed.2d 1456 (1983). Although the indictment may allege more than one purpose for the kidnapping, the State has to prove only one of the alleged purposes in order to sustain a conviction of kidnapping. State v. Sellars, 52 N.C.App. 380, 278 S.E.2d 907, appeal dismissed and cert. denied, 304 N.C. 200, 285 S.E.2d 108 (1981). The indictment in the present case alleged the following:

The jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did kidnap Priscilla Moore, a person who had attained the age of 16 years, by unlawfully confining her and by removing her from one place to another, without her consent, and for the purpose of holding her as a hostage, doing serious bodily injury to her and terrorizing her. Priscilla Moore was seriously injured.

The trial judge submitted to the jury all three purposes alleged in the indictment. The charge to the jury contained the following:

Third, the State must prove beyond a reasonable doubt that the defendant, Jackie Darrell Moore, did this, that is, that he unlawfully confined Priscilla Moore or unlawfully removed her from one place to another for one or more of the following purposes: For the purpose of holding Priscilla Moore as a hostage. To hold a person as a hostage means to hold her as security for the performance or the forbearance of some act by some third person. The State...