State v. Surrett

• Decision Date: 16 March 1993
• Docket Number: No. 9128SC1087,9128SC1087
• Citation: 427 S.E.2d 124,109 N.C.App. 344
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Forrest Ejay SURRETT.

Page 124

427 S.E.2d 124

109 N.C.App. 344

STATE of North Carolina v. Forrest Ejay SURRETT.

No. 9128SC1087.

Court of Appeals of North Carolina.

March 16, 1993.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Jane L. Oliver, Raleigh, for the State.

Asst. Public Defender Curtiss A. Graham, Asheville, for defendant-appellant.

WYNN, Judge.

Defendant was indicted on 5 November 1990 for second degree kidnapping pursuant to N.C.Gen.Stat. § 14-39 and larceny. The case was tried by a jury and defendant was found guilty of second degree kidnapping and misdemeanor larceny. The trial judge entered judgment on the verdicts and sentenced defendant to thirty years imprisonment on the kidnapping charge and two years imprisonment on the misdemeanor larceny charge, sentences to be served consecutively.

The State's evidence tended to show the following. On 22 September 1990, sixteen year old Cathy Jean Brooks stopped at the Ingles grocery store on Patton Avenue in Mt. Carmel, North Carolina while on her way to work. Ms. Brooks was loading groceries in her car when defendant drove his car behind hers and stopped. Defendant initiated a conversation with Ms. Brooks by asking whether she was a certain person. Ms. Brooks stated that she was not that person and continued to load her car. Defendant told Ms. Brooks that he did construction work and offered to give her his business card in case she knew of anyone who may need such work done. Defendant got out of his car and reached toward Ms. Brooks as if to give her his business card. Instead, defendant grabbed Ms. Brooks and pushed her into his car through the driver's side door. Ms. Brooks resisted by kicking and fighting, but defendant forced her into the car and followed in behind her. Defendant drove his car across the parking lot toward the exit onto Patton Avenue.

Ms. Brooks testified that defendant instructed her to "lay down and be quiet," as she struggled with him, continuing to kick and hit defendant. Ms. Brooks testified further that she realized the car window on the passenger's side was open. As defendant attempted to hold her, Ms. Brooks escaped by jumping through the open window while the car was traveling at a speed of approximately fifteen to twenty miles per hour. Ms. Brooks escaped from the car just before it reached the exit to Patton Avenue. Ms. Brooks left her purse in the car and defendant sped away. As Ms. Brooks ran toward the Ingles store, she looked back and got the license tag number from defendant's car.

Denise Swims was exiting her own vehicle when she heard Ms. Brooks' screams and saw her climbing out of the moving car. Ms. Swims was already on the pay telephone in front of Ingles, reporting the incident to the Buncombe County Sheriff's Department when Ms. Brooks ran up to the telephone booth to use the phone. Ms. Swims reported the license tag number given to her by Ms. Brooks and described the car to the dispatcher. Officer Brian Tucker of the Buncombe County Sheriff's Department testified that when he arrived at the scene, Ms. Brooks was "very distraught, crying."

Ms. Brooks testified that she was in defendant's car for approximately forty-five seconds to one and one-half minutes before she was able to escape. She stated that she was "scared to death" during the incident. Dale Lewis, another eyewitness, and Ms. Swims both testified that they heard Ms. Brooks' loud screams coming from defendant's car. Mr. Lewis stated that he saw Ms. Brooks fighting with the defendant and screaming the entire time she was in the car.

Defendant was thereafter apprehended by officers from the Buncombe County Sheriff's Department. Upon searching defendant, officers found a high school class ring in his right front pocket which Ms. Brooks later identified as belonging to her. Several other items belonging to the victim were found in defendant's car. Defendant offered no evidence. Defendant moved to dismiss the charges at the close of the State's evidence and again at the close of all the evidence. The trial judge denied defendant's motions. Upon judgment and sentencing, defendant appeals.

I.

By defendant's first assignment of error he contends that the trial court erred in denying his motion to dismiss at the close of the State's evidence. Defendant contends that the facts submitted by the State were insufficient to show that he committed a kidnapping either for the purpose of committing a felony larceny or for the purpose of terrorizing the victim. We find defendant's contentions to be without merit.

On a motion to dismiss, the trial court must determine whether there is substantial evidence of each essential element of the offense charged. State v. Vines, 317 N.C. 242, 253, 345 S.E.2d 169, 175 (1986). The reviewing court may consider all of the evidence actually admitted, both competent and incompetent. State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 581-82 (1975). The evidence is to be considered in the light most favorable to the State, and the State is to be given the benefit of every reasonable inference to be drawn therefrom. State v. Robbins, 309 N.C. 771, 775, 309 S.E.2d 188, 190 (1983). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). If the State has offered substantial evidence of each essential element of the crime charged, the defendant's motion to dismiss must be denied. State v. Porter, 303 N.C. 680, 685, 281 S.E.2d 377, 381 (1981).

N.C.Gen.Stat. § 14-39 (1986) defines 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, ... 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, restrained 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.

Kidnapping is a specific intent crime, therefore the State must prove that the defendant unlawfully confined, restrained, or removed the victim for one of the specified purposes outlined in the statute. State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986). Although an indictment may allege multiple purposes, the State need only prove one of the alleged purposes in order to sustain a conviction of kidnapping. Id. (citing 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 against defendant charged that he kidnapped Cathy Jean Brooks, "by unlawfully confining her and removing her from one place to another, without her consent, and for the purpose of facilitating the commission of a felony, to wit: Larceny from the person, and for terrorizing her." Defendant argues that the evidence presented by the State was insufficient to prove that the defendant acted for either of these stated purposes.

The trial judge only instructed on one of the purposes alleged in the indictment, that of terrorizing the victim. Larceny from the person was a separate offense for which defendant received a separate instruction. Thus, we need not determine the sufficiency of the evidence as to the charge of kidnapping for the purpose of committing a larceny from the person.

"Terrorize" is defined as "more than just putting another in fear. It means putting that person in some high degree of fear, a state of intense fright or apprehension." Moore, 315 N.C. at 745, 340 S.E.2d at 405. Defendant contends that the evidence that the victim was only in defendant's vehicle for from 45 seconds to one and one-half minutes, and that the only statement made to the victim was to "lay down and be quiet" is insufficient to prove a purpose to terrorize.

Our Supreme Court in construing this statute has noted that "it was clearly the intent of the legislature to make resort to a tape measure or a stop watch unnecessary in determining whether the crime of kidnapping has been committed." State v. Fulcher, 294 N.C. 503, 522, 243 S.E.2d 338, 351 (1978). In Fulcher the Supreme Court specifically rejected the notion that " 'confinement' or 'restraint', as used in this statute, means confinement or restraint 'for a substantial period' and that 'removal,' as used in this statute, requires a movement 'for a substantial distance.' " Id. The Court concluded that no asportation whatsoever is necessary where the requisite confinement or restraint for any one of the specified purposes is present. Id. Further, "intent for the purpose of this statute, may be inferred from the circumstances surrounding the event and must be determined by the jury." State v. Moore, 77 N.C.App. 553, 558, 335 S.E.2d 535, 538 (1985), aff'd per...