STATE OF NORTH CAROLINA
v. Guilford County
Nos. 00 CRS 23344-46
JOSHUA MICHAEL McADOO
Attorney General Roy Cooper, by Assistant Attorney General P.
Bly Hall, for the State.
Richard G. Roose for defendant-appellant.
McGEE, Judge.
Defendant Joshua Michael McAdoo was indicted on 21 February
2000 on charges of first degree kidnapping, assault with a deadly
weapon with intent to kill inflicting serious injury, and felonious
breaking and entering. At trial, the State introduced evidence
tending to show that defendant and Dana McAdoo were married in May
1998, and their daughter was born on 16 May 1998. A few months
later they separated. Mrs. McAdoo obtained a domestic violence
protective order in August 1999. She met Tyrone Griggs in June or
July of 1999 and began a relationship with him in August or
September of 1999. Mrs. McAdoo and her daughter had begun staying
with Mr. Griggs at his home approximately a week before 24 December1999.
Defendant knocked on Mr. Griggs' front door on the morning of
24 December 1999, but neither Mr. Griggs nor Mrs. McAdoo answered
the door. After watching defendant back his vehicle out of the
driveway and pull across the street, Mrs. McAdoo called 911. While
she was on the telephone, she heard another knock at the front
door. Things were quiet for about a minute, then she saw
defendant's shadow at the back door. Defendant kicked in the door
and shot at Mrs. McAdoo. She saw defendant's arms go to the left,
and she heard Mr. Griggs make a noise after defendant shot three
times.
Defendant threatened to kill Mrs. McAdoo, their daughter and
himself. He dragged Mrs. McAdoo into different areas of the house
and ordered her to get her things. An officer confronted defendant
as they attempted to leave, and defendant threatened to shoot Mrs.
McAdoo if the officer did not leave. Defendant then threw his wife
and their daughter on a couch and went into the kitchen to make a
telephone call. During the time defendant was on the telephone, he
could not see Mrs. McAdoo. She ran out of the house with her
daughter. Defendant appeared in the open doorway and asked where
Mrs. McAdoo and his daughter were, that all he wanted to do was
talk to her. Defendant refused to leave the house. Police
officers fired tear gas into the house, and defendant surrendered
to officers.
Defendant introduced evidence on his behalf, but did not
testify himself. He requested during the charge conference thatthe trial court instruct the jury on the offense of second degree
kidnapping on the basis that Mrs. McAdoo was released in a safe
place. The trial court denied the requested instruction. The jury
found defendant guilty of first degree kidnapping, misdemeanor
assault with a deadly weapon, and misdemeanor breaking and
entering. The trial court sentenced defendant to consecutive
sentences of 125 to 159 months, 75 days and 45 days. Defendant
appeals.
Defendant contends the trial court erred by denying his
request to submit the lesser included offense of second degree
kidnapping to the jury. He argues the instruction was warranted
because the jury could have inferred that his willful action of
leaving Mrs. McAdoo alone with the knowledge that officers were
outside of the house ensured her release in a safe place. We
disagree.
"An instruction on a lesser included offense is only required
when there is some evidence to support the particular offense."
State v. Shubert, 102 N.C. App. 419, 424, 402 S.E.2d 642, 645
(1991). The offense of second degree kidnapping occurs "[i]f the
person kidnapped was released in a safe place by the defendant and
had not been seriously injured or sexually assaulted." N.C. Gen.
Stat. § 14-39(b) (2001). Our Supreme Court stated that "in order
to leave a victim in a safe place within the meaning of the
statute, a 'conscious, willful action on the part of the defendant
to assure that his victim is released in a place of safety' [is]
required." State v. Parker, 143 N.C. App. 680, 687, 550 S.E.2d174, 178 (2001), (quoting State v. Jerrett, 309 N.C. 239, 262, 307
S.E.2d 339, 351 (1983)).
The evidence shows that Mrs. McAdoo escaped with her daughter
while defendant was talking on the telephone in another room.
There is no evidence of any willful action on defendant's part to
release Mrs. McAdoo, but rather that she escaped due to defendant's
inattention. Defendant's subsequent action of appearing in the
open doorway and asking where Mrs. McAdoo was further contradicts
the possibility that defendant took any willful action to release
his wife, much less to ensure her release in a place of safety.
See State v. Raynor, 128 N.C. App. 244, 251, 495 S.E.2d 176, 180
(1998). In addition, "releasing a kidnap victim when the kidnapper
is aware he is cornered and outnumbered by law enforcement
officials is not 'voluntary' and . . . sending her out into the
focal point of their weapons is not a 'safe place.'" State v.
Heatwole, 333 N.C. 156, 161, 423 S.E.2d 735, 737-38 (1992).
Accordingly, the trial court did not err by denying defendant's
requested instruction.
No error.
Judges WYNN and CAMPBELL concur.
Report per Rule 30(e).
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