State v. Taylor, 1

• Decision Date: 07 October 1980
• Docket Number: No. 1,1
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Norris Carlton TAYLOR.

Page 409

270 S.E.2d 409

301 N.C. 164

STATE of North Carolina v. Norris Carlton TAYLOR.

No. 1.

Supreme Court of North Carolina.

Oct. 7, 1980.

Atty. Gen., Rufus L. Edmisten by Sp. Deputy Atty. Gen., Ann Reed and Associate Atty., William R. Shenton, Raleigh, for the State.

Mary Ann Talley, Public Defender, Fayetteville, for defendant.

CARLTON, Justice.

We find prejudicial error in the trial court's instructions on kidnapping under G.S. 14-39 (Cum.Supp.1979) and hold that he is entitled to a new trial in the kidnapping case. We find no error in the trial for first degree rape.

I.

Briefly, evidence for the State tended to show that on the evening of 28 August 1978 Jewel Taylor, an accountant, was returning to work and parked her car in the parking lot of the Wachovia Bank Building in downtown Fayetteville, North Carolina. As she walked from her car toward the building, she noticed a black male, later identified as the defendant, approaching her. Defendant grabbed her by the arm, pointed a gun at her and told her to get back in the car and take him wherever he wanted to go or he would kill her. Ms. Taylor complied with the demand, returned to the car and proceeded to drive in accordance with defendant's directions. Defendant directed her to Pope Park in Fayetteville and, after driving through the park, made her stop the car. At that time defendant related to Ms. Taylor the history of his recent criminal activities and told her that he wanted to have sex with her. Ms. Taylor was forced to get out of the car and to remove her clothes. She was then forced, at gunpoint, to have sexual intercourse with defendant against her will. After the rape, defendant instructed her to return to the car and to drive north on U.S. I-95. Ms. Taylor drove north until they reached Petersburg, Virginia, at which time defendant made Ms. Taylor park the car. Defendant and Ms. Taylor waited in the car until daylight so that he could find another car to steal. When he left her car in pursuit of another, Ms. Taylor drove away.

Defendant was apprehended on 1 September 1978 in Woodland, North Carolina, and transported to the Sheriff's Department in Northampton County. After being advised of his rights, defendant was interrogated and confessed to the charges that are the subject of this appeal. He was later taken to Fayetteville. The case was removed to Guilford County for trial.

II.

We first consider whether the trial court erred in its instructions to the jury on the kidnapping charge. Because the instructions allowed the jury to convict on grounds other than those charged in the indictment, we hold that it did.

Defendant was tried under G.S. 14-39 which provides:

Kidnapping.-(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, restrained or removed or any other person.

(b) Any person convicted of kidnapping shall be guilty of a felony and shall be punished by imprisonment for not less than 25 years nor more than life. If the person kidnapped, as defined in subsection (a), was released by the defendant in a safe place and had not been sexually assaulted or seriously injured, the person so convicted shall be punished by imprisonment for not more than 25 years, or by a fine or not more than ten thousand dollars ($10,000), or both, in the discretion of the court.

G.S. 14-39(a)-(b). ¹

Defendant contends that the trial court's instructions to the jury on the kidnapping charge did not comport with the grounds charged in the indictment. In order to examine this contention, we set out relevant portions of the indictment and the jury instructions.

That portion of the indictment under which defendant was convicted of kidnapping charged as follows:

THE JURORS FOR THE STATE UPON THEIR OATH DO PRESENT, that Norris Carlton Taylor, on or about the 28th day of August, 1978, in Cumberland County, North Carolina, did unlawfully, wilfully and feloniously kidnap Jewel Faye Taylor, a person who had attained the age of sixteen (16) years, by unlawfully removing her from the parking lot of the Wachovia Building on Green Street, Fayetteville, North Carolina to Pope Park, located adjacent to Interstate Highway Number 95 in Cumberland County, Fayetteville, North Carolina for the purpose of facilitating the commission of the felony of rape and for the purpose of facilitating the flight of the defendant, Norris Carlton Taylor following the commission of a felony. The said Jewel Faye Taylor was sexually assaulted in the course of this kidnapping, in violation of North Carolina General Statutes Section 14-39.

(Emphases added.)

With respect to the kidnapping charge, the trial court instructed the jury as follows:

The defendant is also charged with the crime of kidnapping. In order for you to find the defendant guilty of kidnapping, there are four things that the State must prove, each beyond a reasonable doubt. First, that the defendant unlawfully confined Jewel Taylor, either in her automobile or at Pope Park or removed her by force from the Wachovia Building to Pope Park, or from Pope Park to a place in Virginia.

Second, that Jewel Taylor did not consent to that act. Again, I advise you that consent obtained or induced by fear is not consent in the eyes of the law. Third. That you find the defendant confined or restrained Jewel Taylor for the purpose of facilitating his flight from apprehension for another crime, or to obtain the use of her vehicle. Finally, that the removal was a separate and complete act, independent and apart from his obtaining the vehicle or any other criminal act on his part ; that it was a separate act. If you find these things from the evidence and beyond a reasonable doubt, then you will have found sufficient facts upon which to find the defendant guilty of the crime of kidnapping. Therefore, I instruct you that if you find from the evidence, and beyond a reasonable doubt, that on or about the 28th day of August 1978, Norris Carlton Taylor unlawfully restrained Jewel Taylor or unlawfully removed her from the area of Wachovia Building to the area of Pope Park in the City of Fayetteville, or to some other place, and that Jewel Taylor did not consent to this removal or restraint, and that it was done for the purpose of facilitating Norris Taylor's flight after committing a crime, or obtaining possession, unlawfully, of Jewel Taylor's car I might say that one does not have to complete his intent; the mere fact the he intended would be sufficient and you further find that this act was a separate and complete act, independent and apart from either the felony he committed or the felony he is charged with having committed thereafter, it would be your duty to return a verdict of guilty of kidnapping.

(Emphases added.)

It is a well-established rule in this jurisdiction that it is error, generally prejudicial, for the trial judge to permit a jury to convict upon some abstract theory not supported by the bill of indictment. State v. Dammons, 293 N.C. 263, 237 S.E.2d 834 (1977); State v. Thorpe, 274 N.C. 457, 164 S.E.2d 171 (1968); see State v. Duncan, 264 N.C. 123, 141 S.E.2d 23 (1965). When the jury instructions are examined under this rule, it is apparent that the charge is erroneous in several respects.

Here, the instructions presented to the jury several possible theories of conviction which were not charged in the bill of indictment. First, the bill of indictment charged defendant with unlawfully "removing" Jewel Taylor from the parking lot of the bank. However, in his charge to the jury, the trial court instructed with respect to the defendant having unlawfully "confined" and "restrained" Ms. Taylor. While these theories of the case might be supported by the evidence, they are not charged in the indictment.

Secondly, the bill of indictment charged that defendant unlawfully removed Ms. Taylor from the parking lot "for the purpose of facilitating the commission of the felony of rape and for the purpose of facilitating the flight of the defendant . . . following the commission of a felony." In his charge to the jury, however, the trial court instructed that defendant would be guilty of kidnapping if, inter alia, the jury found that "the defendant confined or restrained Jewel Taylor for the purpose of facilitating his flight from apprehension for another crime, or to obtain the use of her vehicle." (Emphasis added.) In State v. Thorpe, supra, the indictment for first degree burglary alleged that defendant intended to "feloniously ravage and carnally know" the person who occupied the dwelling. This Court held it was error to instruct the jury that defendant would be guilty if he entered with "the intent to commit a felony." The Court cited the rule that "(t)he indictment having identified the intent necessary, the State was held to the proof of that intent." Id. 274 N.C. at 464, 164 S.E.2d at 176. Here, the indictment charged that defendant's purposes in removing his victim were to facilitate the commission of the felony of rape and to facilitate the flight of the defendant following the commission of a felony. It was prejudicial error, therefore, for the trial court to instruct with respect to "another crime" and to refer to "(obtaining) the use of her vehicle," the latter not being charged in the bill of indictment.

Thirdly, the trial court erred in stating "that the removal was a separate and complete act,...