NO. COA04-327

STATE OF NORTH CAROLINA

         v.                        Hertford County
                                No. 03 CRS 50202
RICHARD ANDERSON OVERTON,
        Defendant.

    Appeal by defendant from the amended judgment entered 3 December 2003 by Judge Quentin T. Sumner in Hertford County Superior Court. Heard in the Court of Appeals 21 February 2005.

    Attorney General Roy Cooper, by Assistant Attorney General M. Elizabeth Guzman, for the State.

    K.E. Krispen Culbertson for defendant-appellant.

    GEER, Judge.

    Defendant Richard Anderson Overton appeals his conviction for second-degree kidnapping. He argues that the trial court should have instructed on the lesser included offense of false imprisonment. Based on our review of the evidence, we hold that the trial court did not err.

Facts

     The State's evidence tended to show the following. In March 2003, Elsie Fennell and defendant, with whom Ms. Fennell had a romantic relationship, were living together in Woodland, North Carolina. On the morning of 15 March 2003, Fennell told defendant that he would have to move out of her house if he did not start helping her with the bills. She then left the house, drove toWilliamston to have her nails done, and then visited a mall in Roanoke Rapids. Between 5:00 and 6:00 p.m., Fennell arrived at her mother's house in St. Johns, where she remained for two hours. After leaving her mother, Fennell drove to a friend's house to play cards until approximately 2:45 a.m.
    Defendant called Fennell's cellular phone several times during the day and left several messages on her voice mail accusing her of going to a motel and engaging in sexual acts with another man. Defendant also "kept calling and calling" Fennell while she was at her friend's house, but Fennell did not answer her phone.
    When Fennell arrived home at 3:00 a.m., defendant came out of the bedroom and asked her where she had been and why she had not returned his calls. He then asked Fennell to drive him uptown. When she refused, defendant told her to call her mother and ask her to take him. As Fennell was dialing her mother's phone number, defendant grabbed the phone from her hand and hit her with the phone in the face and nose. Fennell testified that defendant repeatedly struck and punched her in the face and head for approximately four or five minutes. Fennell finally was able to break away and ran to the front door, only to find it locked. Defendant grabbed her from behind as she tried to unlock the door, threw her on the floor, and continued to punch her. Fennell "just gave up and cried" and asked defendant to let her get up. After defendant allowed Fennell to stand, he told her, "You brought it on yourself, you brought it on yourself."
    When Fennell looked in the bathroom mirror, she saw that shehad a knot on the side of her face, her right eye was almost swollen shut, her nose was sore, and she had blood coming from her ear. Fennell asked defendant to allow her to call her mother. He refused at first, but eventually relented and allowed Fennell to make the call, although he sat beside her so that she could not tell her mother what had happened. After the call, Fennell told defendant that she needed to get some air and walked out on the front porch. She asked to go to her mother's house, but defendant refused. Fennell did not try to run because she was "scared" of defendant.
    When they went back into the house, defendant told Fennell that he loved her, but she had "brought it on [her]self" for not calling him back. Fennell again asked to get some air and walked to the back door, which was locked. As she was unlocking the door, defendant grabbed the back of her shirt and held onto it as she walked onto the back porch. She persuaded him to let go and when she gained some distance from defendant, she "ran and jumped the ditch to [her] neighbor's window," and yelled. Defendant ran after Fennell and grabbed her, dragging her back into the house.
    Once inside, Fennell begged defendant for 15 to 20 minutes to let her go to her mother's house. After giving repeated assurances that she would come back to him and would not call the police, defendant gave her the keys to her truck. Defendant kept Fennell in the house for an hour to an hour and a half before allowing her to leave.
    Fennell called her mother from the truck with her cellularphone, told her what defendant had done, and asked her mother to meet her at a location away from the house. Upon seeing Fennell's condition, her mother took her to Roanoke Chowan Hospital.
    Hertford County Deputy Sheriff Steve Ashe interviewed Fennell at the hospital on the morning of 16 March 2003. He found her lying on a bed in a treatment room and "noticed that she had been assaulted. She had bruises and marks about her face and was visibly shaken." After speaking with Fennell, Ashe and a fellow deputy arrested defendant.
    Defendant was indicted on one count of second degree kidnapping and one count of assault on a female. He pled guilty to the assault charge, but went to trial on the kidnapping charge and was found guilty on 4 November 2003. The trial court sentenced him to a term of 58 to 79 months imprisonment.

Discussion

    In his lone argument on appeal, defendant claims the trial court erred in denying his request for a jury instruction on the lesser included offense of false imprisonment. The trial court must instruct the jury on any lesser included offense that is supported by the evidence. State v. Kyle, 333 N.C. 687, 703, 430 S.E.2d 412, 421 (1993). When, however, "the State presents evidence of every element of the offense, and there is no evidence to negate these elements other than the defendant's denial that he committed the offense, then no lesser-included offense need be submitted." State v. Mangum, 158 N.C. App. 187, 197, 580 S.E.2d 750, 757, disc. review denied, 357 N.C. 510, 588 S.E.2d 378 (2003). The mere possibility that the jury might accept some, but not all, of the State's evidence is insufficient to warrant an instruction on a lesser offense, absent affirmative evidence tending to negate an element of the greater offense. State v. Franks, 74 N.C. App. 661, 662, 329 S.E.2d 717, 718, disc. review denied, 314 N.C. 333, 333 S.E.2d 493 (1985).
    N.C. Gen. Stat. § 14-39(a)(3) (2003) defines second degree kidnapping as follows:
        Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person . . . without the consent of such person, or any other 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.

False imprisonment is a lesser included offense of kidnapping. Kyle, 333 N.C. at 703, 430 S.E.2d at 421.
    The distinction between the greater and lesser offenses lies in the defendant's purpose in restraining the victim: "If the purpose of the restraint was to accomplish one of the purposes enumerated in the kidnapping statute . . ., the offense is kidnapping." Id. In the absence of one of the statutorily specified purposes, the unlawful restraint is false imprisonment.
    Defendant was tried upon an indictment alleging that he unlawfully restrained Fennell "for the purpose of terrorizing" her. To terrorize a person is to "'[put] that person in some high degreeof fear, a state of intense fright or apprehension.'" State v. Claypoole, 118 N.C. App. 714, 717, 457 S.E.2d 322, 324 (1995) (quoting State v. Surrett, 109 N.C. App. 344, 349, 427 S.E.2d 124, 127 (1993)). In assessing defendant's culpability under N.C. Gen. Stat. § 14-39(a)(3), "'the test is not whether subjectively the victim was in fact terrorized, but whether . . . defendant's purpose was to terrorize her.'" State v. Baldwin, 141 N.C. App. 596, 604, 540 S.E.2d 815, 821 (2000) (quoting State v. Moore, 315 N.C. 738, 745, 340 S.E.2d 401, 405 (1986)).
    Here, uncontradicted evidence showed that defendant began beating Fennell for four or five minutes and then caught and restrained Fennell as she attempted to unlock the front door and flee their house. He explained his actions to Fennell by saying that she "brought it on [her]self" for not responding to his calls. This evidence supports a finding that defendant restrained Fennell, at this point, for the purpose of placing her in a "'high degree of fear, a state of intense fright or apprehension'" and thus for the purpose of terrorizing her. Claypoole, 118 N.C. App. at 717, 457 S.E.2d at 324 (quoting Surrett, 109 N.C. App. at 349, 427 S.E.2d at 127). There is no evidence that, during this restraint, defendant was acting for any other purpose.
    While subsequent statements of defendant suggested that defendant later acted, at least in part, for the purpose of avoiding detection by the police, it is immaterial that defendant's purpose may have changed during the course of the restraint. Franks, 74 N.C. App. at 667, 329 S.E.2d at 721. Instead, "thekidnapping offense [i]s complete if he at any time during the [restraint] had the requisite intent." Id. The fact that a defendant had other purposes in restraining his victim in addition to the purpose charged in the indictment "is immaterial and may be disregarded." State v. Hall, 305 N.C. 77, 82, 286 S.E.2d 552, 555 (1982), overruled on other grounds by State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986).
    The trial court properly denied defendant's request for an instruction on false imprisonment since the kidnapping was complete when defendant prevented Fennell from fleeing the house the first time and the evidence indicated, at that time, only a purpose of terrorizing Fennell. See Baldwin, 141 N.C. App. at 606-07, 540 S.E.2d at 822-23.

    No error.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***