STATE OF NORTH CAROLINA
v
.
Wayne County
Nos. 00 CRS 053555, 053603
WILLIE BERNARD JOHNSON,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Robert M. Curran, for the State.
Kevin F. MacQueen for defendant-appellant.
EAGLES, Chief Judge.
Willie Bernard Johnson (“defendant”) appeals from judgments
entered on jury verdicts finding him guilty of first degree
kidnapping and possession of a firearm by a convicted felon. After
careful consideration of the briefs and record, we discern no
error.
Defendant and Cassandra Johnson married in October 1998.
Defendant and Mrs. Johnson separated in February 2000 and divorced
on 30 April 2001. Defendant and Mrs. Johnson have a son,
Christopher Johnson, who was twenty-two months old at the time of
the trial. On 2 May 2000, Mrs. Johnson, her mother, and grandmother were
at a house on Aycock Street in Goldsboro. Mrs. Johnson went to the
store to purchase some milk and when she returned, defendant was at
the house. Defendant and Mrs. Johnson spoke for approximately ten
minutes. Defendant told Mrs. Johnson that he had toys belonging to
Sabrina, Mrs. Johnson's eight year old daughter, and Christopher in
his car. Mrs. Johnson went to defendant's car to help get the
toys. Defendant opened the car door, reached under the driver's
seat, and pulled out a pistol. Defendant ordered Mrs. Johnson to
get in the car and “cocked” the gun. Mrs. Johnson refused and
defendant told her that “if you don't get in this car with me I
will shoot you” and that he would “shoot [her grandmother] in the
back of her head.” Mrs. Johnson walked to her grandmother to
return her grandmother's car keys. Mrs. Johnson then got in the
car with defendant and he drove away.
While driving away, defendant pointed the gun at Mrs.
Johnson's leg and threatened to “shoot [her] leg off.” Defendant
asked Mrs. Johnson if she had heard from her niece recently and
told her that she would not “be able to find her [niece's] body.”
Mrs. Johnson asked defendant to let her go but defendant kept
driving. Each time defendant had to stop the car at a traffic
light, he would point the gun at Mrs. Johnson. Defendant unloaded
the gun and offered it to Mrs. Johnson but she refused to take it.
Defendant stopped the car in a wooded area and Mrs. Johnson went to
the bathroom. Defendant could not get the car out of the dirt. He
reloaded the gun and wrapped it in a coat. Defendant walked overto Mrs. Johnson and told her to follow him. As they walked into
the woods, defendant told Mrs. Johnson that he wanted “his family
back” and to be in a relationship again with Mrs. Johnson. Then,
defendant told Mrs. Johnson that she could go. Defendant told her
that he “just can't live like this no more” and put the gun to his
chin. Mrs. Johnson walked away from defendant and continued for
approximately ten minutes until she came to a road. A car stopped
for Mrs. Johnson and the driver called the police.
The police began their search for defendant at approximately
12:30 p.m. The police arrested defendant, at approximately 4:00
a.m. the following morning, walking through a Food Lion parking
lot.
Defendant was charged with and found guilty of possession of
a firearm by a convicted felon and first degree kidnapping. The
trial court entered judgment on the jury verdicts and sentenced
defendant to consecutive terms of imprisonment of 167 months to 210
months for first degree kidnapping and 20 months to 24 months for
possession of a firearm by a convicted felon. Defendant appeals.
On appeal, defendant contends that the trial court erred in:
allowing the State's motion to amend the possession of a firearm by
a felon indictment; allowing the introduction of evidence pursuant
to Rule 404(b) of the North Carolina Rules of Evidence; and denying
defendant's request for a false imprisonment jury instruction.
After careful consideration, we disagree.
Defendant first contends that the trial court erred by
allowing the State's motion to amend the indictment for possessionof a firearm by a convicted felon and then denying defendant's
motion for a continuance. We do not agree.
Defendant argues that the trial court improperly allowed the
State to amend the indictment after the jury had been impaneled.
Defendant argues that the amendment, which changed the date of the
prior felony conviction stated in the indictment, constituted
prejudicial surprise because defendant then had to defend against
a different charge.
G.S. § 15A-923(e) (2001) states that “[a] bill of indictment
may not be amended.” “This statute, however, has been construed to
mean only that an indictment may not be amended in a way which
'would substantially alter the charge set forth in the
indictment.'” State v. Brinson, 337 N.C. 764, 767, 448 S.E.2d 822,
824 (1994) (quoting State v. Carrington, 35 N.C. App. 53, [58,] 240
S.E.2d 475, [478,] disc. review denied, 294 N.C. 737, 244 S.E.2d
155 (1978)). Also, “[t]his Court has held that '[a] change in an
indictment does not constitute an amendment where the variance was
inadvertent and defendant was neither misled nor surprised as to
the nature of the charges.'” State v. McNair, 146 N.C. App. 674,
676-77, 554 S.E.2d 665, 668 (2001) (quoting State v. Campbell, 133
N.C. App. 531, 535-36, 515 S.E.2d 732, 735, disc. review denied,
351 N.C. 111, 540 S.E.2d 370 (1999)).
Here, the indictment for possession of a firearm by a
convicted felon provides that:
[O]n or about the 2nd day of May, 2000, in
Wayne County, [defendant] unlawfully,
willfully and feloniously did possess . . . a
handgun . . . which is a firearm, after havingbeen convicted of the felony of assault with a
deadly weapon on a governmental officer, which
is a Class F felony, in case number 93CRS68602
in the Superior Court of Guilford County,
North Carolina. That offense was committed on
October 21, 1993, and the defendant plead
guilty on October 14, 1994, and was sentenced
to ten (10) years in the custody of the North
Carolina Department of Correction.
In addition to the conviction date, the indictment provided the
specific charge, case number, date the offense was committed and
the sentence. The change made by the State was only to the
conviction date, correcting it from 14 October 1994 to 29 September
1994. The remaining unchanged information was sufficient to
provide defendant with notice of the charge. The change did not
“'substantially alter the charge set forth in the indictment,'”
Brinson, 337 N.C. at 767, 448 S.E.2d at 824 (citation omitted), and
did not mislead or surprise defendant about the charge. McNair,
146 N.C. App. at 676-77, 554 S.E.2d at 668.
Defendant also argues that the trial court should have granted
his motion for a continuance after the change to the indictment.
“A motion for a continuance is ordinarily addressed to the sound
discretion of the trial court. Therefore, the ruling is not
reversible on appeal absent an abuse of discretion.” State v.
Smith, 310 N.C. 108, 111, 310 S.E.2d 320, 323 (1984). Defendant
has not shown an abuse of discretion. This assignment of error is
overruled.
Defendant next contends that the trial court erred in allowing
the introduction of evidence pursuant to Rule 404(b). Defendant
argues that the State introduced evidence of prior threats andphysical abuse by defendant. Defendant argues that this evidence
was not permissible pursuant to Rule 404(b). We disagree.
Rule 404(b) of the North Carolina Rules of Evidence states
that:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
G.S. § 8C-1, Rule 404(b) (2001). “This list of proper purposes is
neither exclusive nor exhaustive.” State v. Church, 99 N.C. App.
647, 653, 394 S.E.2d 468, 472 (1990). “Rule 404(b) is a rule of
inclusion, subject to the single exception that such evidence must
be excluded if its only probative value is to show that defendant
has the propensity or disposition to commit an offense of the
nature of the crime charged.” State v. Berry, 356 N.C. 490, 505,
573 S.E.2d 132, 143 (2002) (emphasis in original).
[E]vidence of a victim's awareness of prior
crimes allegedly committed by the defendant
may be admitted to show that the victim's will
had been overcome by her fears for her safety
where the offense in question requires proof
of lack of consent or that the offense was
committed against the will of the victim.
State v. Young, 317 N.C. 396, 413, 346 S.E.2d 626, 636 (1986).
First degree kidnapping requires proof that the offense was
committed either “against the will of the victim or without her
consent.” Id.
At trial, Mrs. Johnson testified about incidents of physical
and mental abuse. Specifically, she testified that defendant“slapped” or struck her on multiple occasions during her marriage
to defendant. Mrs. Johnson further testified that defendant took
her to a wooded area and threatened to kill her. Also, Mrs.
Johnson testified that defendant threatened to “hurt somebody
that's closest to [her]” if she “ever were to leave [him].”
Here, defendant was charged with first degree kidnapping.
Defendant ordered that Mrs. Johnson get into his car at gunpoint,
threatened to shoot her leg, and drove her to a wooded area. Mrs.
Johnson's testimony about the prior incidents of physical and
mental abuse, which occurred within two years of the offense
charged here, were properly admitted to show that her “will had
been overcome by her fears for her safety where the offense in
question requires proof of lack of consent or that the offense was
committed against the will of the victim.” Young, 317 N.C. at 413,
346 S.E.2d at 636. This assignment of error is overruled.
Defendant contends that the trial court erred in denying
defendant's request for a false imprisonment jury instruction.
Defendant argues that the evidence would support the finding that
defendant did not remove Mrs. Johnson for the purpose of
terrorizing her which would negate an element of the kidnapping
charge. We are not persuaded.
G.S. § 14-39(a)(3) (2001) states that:
(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:
. . . .
(3) Doing serious bodily harm to or
terrorizing the person so confined,
restrained or removed or any other
person.
“Where there is no evidence from which the jury could find
that the crime of lesser degree was committed, the trial court need
not instruct on a lesser-included offense.” State v. Claypoole,
118 N.C. App. 714, 717, 457 S.E.2d 322, 324 (1995). “The mere
contention that the jury might accept the State's evidence in part
and might reject it in part is not sufficient to require submission
to the jury of a lesser offense.” State v. Buck, 21 N.C. App. 640,
643-44, 205 S.E.2d 154, 156, aff'd, 286 N.C. 191, 209 S.E.2d 458
(1974).
“Our courts have long held that false imprisonment is a
lesser-included offense of the crime of kidnapping.” State v.
Baldwin, 141 N.C. App. 596, 605, 540 S.E.2d 815, 822 (2000). “The
difference between kidnapping and the lesser-included offense of
false imprisonment is the purpose of the confinement, restraint, or
removal of another person.” State v. Lancaster, 137 N.C. App. 37,
44, 527 S.E.2d 61, 66, disc. review denied in part, 352 N.C. 680,
545 S.E.2d 723 (2000). “If the purpose of the restraint was to
accomplish one of the purposes enumerated in [G.S.] § 14-39, then
the offense is kidnapping. However, if the unlawful restraint
occurs without any of the purposes specified in the statute, the
offense is false imprisonment.” Claypoole, 118 N.C. App. at 717-
18, 457 S.E.2d at 324. In State v. Surrett, 109 N.C. App. 344, 351-52, 427 S.E.2d
124, 128 (1993), this Court held that no false imprisonment
instruction was required where the defendant forced the victim into
the defendant's car, told her to lie down and be quiet, and drove
away. The Court stated that the evidence “pointed to a purpose to
terrorize the victim.” Id. at 351, 427 S.E.2d at 128.
Here, defendant was charged with kidnapping “for the purpose
of terrorizing” Mrs. Johnson. Defendant ordered Mrs. Johnson into
his car at gunpoint, pointed the gun at her whenever the car
stopped to prevent Mrs. Johnson from getting out of the car, and
threatened to shoot Mrs. Johnson in the leg. While they were in
the car, Mrs. Johnson testified that defendant asked her if she had
heard from her niece lately and then defendant stated that “you're
not going to be able to find her body, we're even now, I told you
that if you ever leave me I will hurt somebody in your family.”
Defendant drove Mrs. Johnson to a secluded wooded area, stated that
he “just can't live like this no more” and pointed the gun at his
chin. Mrs. Johnson testified that when she was in the woods she
“didn't know what was happening” and that she “was still frightened
because [she] did not know what was going to happen” and that she
“was getting tired, [she] didn't know where [she] was, [she] wasn't
going to try to run nowhere.” The evidence here does not warrant
a false imprisonment instruction because the evidence indicates
that defendant's purpose was to terrorize Mrs. Johnson.
Accordingly, we hold that defendant received a fair trial free
from prejudicial error. No error.
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).
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