1. Kidnapping--first-degree--lesser included offense of false imprisonment
The trial court did not err in a first-degree kidnapping case by refusing to submit false
imprisonment as a lesser included offense, because: (1) the evidence at trial indicated that
defendant's purpose was to terrorize his victim ex-wife as enumerated in the kidnapping statute
under N.C.G.S. § 14-39(a)(3); and (2) there was no evidence from which a reasonable jury could
conclude that defendant merely wished to communicate with his ex-wife.
2. Evidence--cross-examination--events of kidnapping--amnesia
The trial court did not abuse its discretion in a first-degree kidnapping case by permitting
the State to cross-examine defendant about the events of 26 September 1998 even though
defendant contends he suffered from amnesia and was unable to recall, because: (1) a prosecutor
may properly argue the failure of a defendant to produce evidence; (2) a criminal defendant who
takes the stand on his own behalf is subject to cross-examination to the same extent as any other
witness; (3) once defendant took the stand, the State was entitled to thoroughly cross-examine
him, including questioning his lack of memory for which there was no dispositive medical
evidence; and (4) it was under such cross-examination that defendant admitted he could picture
himself binding and gagging a woman that he loved.
TIMMONS-GOODSON, Judge.
On 12 August 1999, a jury found Kenneth Michael Boekenoogen
("defendant") guilty of first-degree kidnapping. The evidence at
trial tended to show the following: On the morning of 26 September
1998, defendant entered a bakery in Durham County, North Carolina,
where his ex-wife, Lynn Marie Boekenoogen ("Boekenoogen"), worked
as the sole employee. Defendant immediately seized Boekenoogen byher hair, held a knife to her throat, and threatened to kill her.
Defendant then pushed Boekenoogen into a back room of the bakery
and proceeded to bind her head, arms and legs with duct tape.
During the struggle, defendant sliced Boekenoogen's thumb with his
knife and knocked out one of her teeth.
After binding Boekenoogen with tape, defendant locked the
front door of the bakery and placed a small, hand-printed sign on
the door announcing that, "Due to a family emergency, we will be
closed today. We will reopen on Monday 9/28/98. Thank you."
While defendant was occupied at the front of the bakery,
Boekenoogen freed herself from the duct tape enough to exit from
the rear of the building and obtain assistance. Durham police
officers located defendant five days later at John Umstead
Hospital, where defendant had been involuntarily committed for
psychiatric evaluation and treatment after attempting suicide.
Defendant testified that he could recall nothing concerning
the altercation with Boekenoogen. Dr. Michael Hill ("Dr. Hill"),
a clinical associate professor of psychiatry at the University of
North Carolina at Chapel Hill, testified that defendant's lack of
memory was due to an alcohol-induced amnesia, also known as an
"alcohol blackout." Dr. Hill admitted, however, that his diagnosis
was based in part upon information given to him by defendant and
that medical testing revealed no physical explanation for
defendant's memory loss. Defendant also presented testimony from
his friend Stephanie Gancarz ("Gancarz"), who stated that she
talked to defendant on the telephone the morning of 28 September
1998. According to Gancarz, defendant was "hysterical," stating"I'm sorry. I'm sorry. I didn't mean to hurt her. . . . I
want to
die. I just wanted her to feel the pain that she made me feel."
Defendant could not remember his telephone conversation with
Gancarz.
Upon receiving the jury's guilty verdict, the trial court
sentenced defendant to a minimum term of one hundred thirty-three
(133) months' and a maximum term of one hundred sixty-nine (169)
months' imprisonment. From his conviction and sentence, defendant
appeals.
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Defendant argues the trial court erred in refusing to submit
false imprisonment as a lesser included offense of kidnapping to
the jury, and that it abused its discretion in permitting certain
cross-examination questions by the State. For the reasons stated
herein, we reject defendant's arguments and conclude that the trial
court committed no error.
[1]Defendant contends the trial court erred in denying
defendant's request to submit the charge of false imprisonment to
the jury. Defendant asserts there was evidence at trial from which
the jury could conclude that defendant committed the lesser
included offense. We disagree.
North Carolina General Statutes section 14-39 states in
pertinent part that:
[a]ny 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: .
. . [d]oing serious bodily harm to or
terrorizing the person so confined.
N.C. Gen. Stat. § 14-39(a)(3) (1999). False imprisonment is a
lesser included offense of kidnapping and must be submitted as such
to the jury, unless there is no evidence of any purpose other than
one of those enumerated in the kidnapping statute. See State v.
Kyle, 333 N.C. 687, 703, 430 S.E.2d 412, 421 (1993). Although
defendant could not recall his purpose in assaulting Boekenoogen,
he nevertheless contends that Gancarz's testimony established that
defendant's purpose in restraining his ex-wife was for reasons
other than for the purpose of terrorizing her. Specifically,
defendant argues that his statement to Gancarz that he "just wanted
her to feel the pain that she made [defendant] feel" indicates that
defendant merely wished to effectively communicate to his ex-wife
the strong emotions he felt over their separation.
Defendant's argument is without merit. The evidence at trial
overwhelmingly indicated that defendant's purpose on 26 September
1998 was to terrorize Boekenoogen. See State v. Nicholson, 99 N.C.
App. 143, 147, 392 S.E.2d 748, 751 (1990) (holding that where the
defendant grabbed the victim at gunpoint and threatened to kill
her, such evidence "unerringly pointed to a purpose to terrorize").
Defendant, who is six feet tall and weighs approximately 170
pounds, entered the bakery and immediately seized Boekenoogen, who
is four feet, eleven inches tall and weighs ninety-two pounds, by
her hair. Holding a knife to her throat, defendant forced
Boekenoogen to a back room, substantially injuring her in the
process and repeatedly informing her that he was going to kill her.
Defendant thoroughly bound Boekenoogen with duct tape, includingher head and mouth. Defendant obviously deliberated upon his
course of action, as evidenced by the sign he created stating that
the bakery would be closed for several days, as well as by the duct
tape he brought with him to the bakery. Given defendant's actions,
there was no evidence from which a reasonable jury could conclude
that defendant merely wished to communicate with his ex-wife, and
the trial court therefore properly denied defendant's request to
submit the charge of false imprisonment to the jury. We therefore
overrule defendant's first assignment of error.
[2]By his second assignment of error, defendant argues the
trial court abused its discretion in permitting the State to cross-
examine defendant. Defendant contends that, as he was unable to
recall the events of 26 September 1998, several of the
prosecution's questions to him were improper and made in bad faith.
At trial, the following exchange occurred:
Q [the State]: You cannot deny being the
perpetrator that confined, restrained and
removed [Boekenoogen], which constitutes a
kidnapping charge, right?
[Defense counsel]: Objection.
THE COURT: Overruled.
A [Defendant]: Yes, ma'am.
. . . .
Q: So you don't find it -- you can see
yourself -- you can picture yourself binding
and gagging a woman that you love, right?
A: That's not exactly what I meant by the
statement, but yes, ma'am.
Q: You could picture yourself terrorizing,
assaulting and threatening to kill a womanthat you claim to love?
A: No, ma'am.
Q: Well, that's exactly what happened on
September 26th.
[Defense counsel]: Objection.
THE COURT: Overruled.
Q: You have not denied that that's exactly
what happened on September 26 --
[Defense counsel]: Objection.
THE COURT: Overruled.
Q: -- right?
A: That's correct.
Q: The bottom line is there's nothing you can
say that can dispute one single thing that
Lynn Boekenoogen told this jury --
[Defense counsel]: Objection.
Q: -- right?
THE COURT: Overruled.
A: That's correct.
Defendant argues the above-stated questions were improper, in that
they implied that defendant could not dispute the prosecution's
version of events. We disagree.
In State v. Fletcher, 348 N.C. 292, 322, 500 S.E.2d 668, 685
(1998), cert. denied, 525 U.S. 1180, 143 L. Ed. 2d 113 (1999), our
Supreme Court noted that "[a] prosecutor may . . . properly argue
the failure of the defendant to produce evidence." See also State
v. Tilley, 292 N.C. 132, 143, 232 S.E.2d 433, 441 (1977) (holding
that the State may properly draw the jury's attention to thefailure of the defendant to produce exculpatory evidence or to
contradict the State's case). Moreover, when a criminal defendant
takes the stand to testify on his own behalf, he is subject to
cross-examination to the same extent as any other witness. See
State v. Faison, 330 N.C. 347, 361, 411 S.E.2d 143, 151 (1991). A
defendant's admission as to a material fact does "not relieve the
State of the burden of proving its entire case beyond a reasonable
doubt as long as defendant [stands] on his plea of not guilty."
State v. Cutshall, 278 N.C. 334, 347, 180 S.E.2d 745, 753 (1971).
In the instant case, defendant chose to testify in his own
defense, despite his claim of amnesia. Once defendant took the
stand, the State was entitled to thoroughly cross-examine him,
including questioning his lack of memory, for which there was no
dispositive medical evidence. It was under such cross-examination
that defendant admitted he could "picture [himself] binding and
gagging a woman that [he] love[d]." Under such circumstances, the
State's questions were appropriate, and the trial court properly
overruled defendant's objections. We therefore overrule
defendant's second assignment of error.
In summary, we hold defendant received a fair trial, free from
prejudicial error.
No error.
Judges McGEE and BIGGS concur.
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