State v. Pender
| Decision Date | 01 September 2015 |
| Docket Number | No. COA14–829.,COA14–829. |
| Citation | 776 S.E.2d 352,243 N.C.App. 142 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina, v. Issac J. PENDER, Jr., Defendant. |
Attorney General, Roy Cooper, by Assistant Attorney General, Alexandra M. Hightower, for the State.
W. Michael Spivey, Rocky Mount, for defendant-appellant.
Defendant Issac J. Pender, Jr. appeals from judgments sentencing him based on convictions of violating a domestic violence protection order ("DVPO"), possession of a firearm by a felon, first degree burglary, multiple counts of second degree kidnapping, and multiple counts of assault by pointing a gun. We find defendant's arguments on appeal unpersuasive with one exception. We agree with defendant that the judgments based on his convictions of second degree kidnapping of his own sons must be vacated. The plain language of N.C. Gen.Stat. § 14–39 (2013) does not permit prosecution of a parent for kidnapping, at least when that parent has custodial rights with respect to the children. We find no error as to the remaining judgments.
The State's evidence tended to show the following facts. Defendant and his wife Nancy Alston were married in 2007 or 2008 and had two children together, J.P. and E.P.1 Nancy has two older children from a different relationship, D.M. and A.M. After they were married, Nancy and defendant lived with all four children at their house in Franklinton, North Carolina. However, at some point, Nancy "put [defendant] out" of the house. On or about 10 March 2011, defendant broke into Nancy's house, assaulted and threatened her and then fled. Nancy filed for a DVPO against defendant. Defendant was arrested, and on 29 August 2011, he was convicted of felony assault by strangulation and imprisoned for eight months. Nancy continued to live at the house in Franklinton.
Following defendant's release from prison, he went to Nancy's house, cut her phone line, broke in, and sexually assaulted her. After this incident, Nancy and her children moved in with Vera Pierson, Nancy's mother, at Vera's house in Louisburg, North Carolina.
On 6 July 2012, defendant obtained a shotgun, called J.P. and told him that he loved him and that he was going to kill Nancy. After the call, defendant, who had been drinking vodka, left with the shotgun in the trunk of his car.
That evening at Vera's house, while Nancy was giving J.P. a bath, J.P. disclosed that defendant had said he was going to kill Nancy. Later, after Nancy's children were in bed, Nancy was at her aunt's neighboring house playing cards when some family members who were staying at Vera's house told Nancy that she needed to come back to Vera's because defendant was on his way over. Nancy returned to Vera's house.
Later that evening, defendant arrived clandestinely at Vera's house. While Nancy's sister Octavia Tewanda Alston ("Tewanda") was using the phone, defendant cut the phone line and the phone went dead. Moments later, after investigating outside, Tewanda ran into the house and yelled to Nancy that defendant was there. Nancy ran into a bedroom where Vera was watching television, and she begged Vera to hide her. Vera hid Nancy in a small closet in that room, and Vera sat in a chair in front of the closet and continued to watch television. Inside Vera's house, along with Vera, Nancy, and Nancy's children, were Tewanda and Tewanda's children M.A., D.A., and K.A.; Nancy's other sister Takita Alston and Takita's daughter S.A.; and Nancy's brother Nathaniel. At this time, S.A., D.A., E.P., J.P., and K.A. were all under 16 years of age. In total, there were 13 people in Vera's house when defendant broke into the house.
While still outside the house, defendant shot Nancy's truck, which Nancy and the others inside the house heard, and defendant broke in by shooting through a side window of the house. After defendant was in the house, he yelled, Waving his shotgun, and without knowing whether Nancy was there, defendant ordered every occupant in the house into the bedroom where Vera was watching television and said that he was going to stay until he got "the last breath out of [Nancy]." Nancy's children and nieces and nephews were crying, and Vera complained of her chest hurting. Defendant pointed his shotgun back and forth at every person in the bedroom and repeatedly asked where Nancy was. Vera told him that Nancy had gone out for the evening, and others similarly answered that she was not there.
Defendant searched the house, but he did not find Nancy. Defendant then called out his sons, J.P. and E.P., to give him a hug. About 30 to 45 minutes after defendant's break-in, defendant left. Because defendant had cut the phone line to Vera's house, D.A. ran next door to Nancy's aunt's house and used the phone there to call 911. When the police arrived, it was morning, and an officer had to pull Nancy out of the closet because she was petrified from fear.
Defendant was indicted for 12 counts of first degree kidnapping and 12 counts of assault by pointing a gun. Defendant was not charged with kidnapping or assaulting Nancy. Defendant was also indicted for violating a DVPO, possession of a firearm by a felon, and first degree burglary.
At trial, the State's evidence included testimony from witnesses including Nancy, Vera, Tewanda, D.A., and D.M. At the close of the State's evidence, defense counsel made a motion to dismiss which the trial court granted in part by dismissing the first degree kidnapping charges. However, the trial court permitted the State to proceed against defendant on 12 counts of second degree kidnapping. Defendant presented no evidence.
The jury convicted defendant of 12 counts of second degree kidnapping, 12 counts of assault by pointing a gun, violation of a DVPO, possession of a firearm by a felon, and first degree burglary. Defendant filed a pro se notice of appeal on 3 December 2013 from the judgments entered on his convictions. Defendant admits that this notice was untimely, technically defective, and not served upon the State. However, defendant also filed a petition for writ of certiorari on 9 September 2014. The State has not responded to defendant's petition. The State filed its appellee brief on 10 November 2014, after defendant's petition was filed, but made no reference to the defects of defendant's notice of appeal. In our discretion, we grant defendant's petition for writ of certiorari. See State v. Rowe, ––– N.C.App. ––––, ––––, 752 S.E.2d 223, 225 (2013) ().
Defendant first argues that there were fatal deficiencies in certain of the kidnapping indictments that deprived the trial court of jurisdiction over those charges. State v. Justice, 219 N.C.App. 642, 643, 723 S.E.2d 798, 800 (2012) (internal citation omitted) (quoting State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011) ). Although the State points out that defendant raises these arguments for the first time on appeal, a criminal defendant may challenge the jurisdiction of the trial court at any time by arguing the insufficiency of an indictment, "notwithstanding [the] defendant's failure to contest [the indictment's] validity in the trial court." State v. Call, 353 N.C. 400, 429, 545 S.E.2d 190, 208 (2001).
" ‘[A]n indictment is not facially invalid as long as it notifies an accused of the charges against him sufficiently to allow him to prepare an adequate defense and to protect him from double jeopardy.’ " State v. McKoy, 196 N.C.App. 650, 656, 675 S.E.2d 406, 411 (2009) (quoting State v. Haddock, 191 N.C.App. 474, 476–77, 664 S.E.2d 339, 342 (2008) ). However, an indictment is fatally deficient when it fails on its face to allege "all of the essential elements of the offense." State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996).
Defendant challenges the indictments for the kidnapping victims who were under 16 years old. Each indictment naming as victims S.A., D.A., E.P., J.P., A.M., and K.A., stated that defendant "unlawfully, willfully, and feloniously did kidnap [the victim], a person under the age of 16 years by unlawfully confining the victim and restraining the victim without the victim's consent ...." (Emphasis added.) Defendant contends that because the kidnapping indictments for those victims did not allege a lack of parental or custodial consent, those indictments were fatally defective.
Our Supreme Court has explained, however, that ...
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