An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1477


Filed: 20 September 2005

        v.                        Wake County        &n bsp;                   
                                Nos. 03 CRS 043599 ;
CHRISTOPHER CASTOSA                         03 CRS 043601 -02 ;
(aka CHRISTOPHER TABRON) ,                  03 CRS 046344                 

    Appeal by defendant from a judgment dated 25 February 2004 by Judge W. Osmond Smith, III, in Wake County Superior Court. Heard in the Court of Appeals 22 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Belinda A. Smith, for the State.

    Anne Bleyman for the defendant.

    BRYANT, Judge.

     Christopher Castosa (defendant) appeals from a judgment and sentence following jury verdicts finding him guilty of misdemeanor breaking and entering, attempted second-degree kidnapping, assault by pointing a gun and assault on a female.
    On 26 May 2003, Monica Evette Mason, defendant's ex-girlfriend, had dinner at Sophia Ellis' apartment. That same night, defendant visited a friend at Ellis' apartment complex. When Ellis and Mason passed defendant in the parking lot, defendantindicated he wanted contact with Mason, although Mason refused. Later that night, defendant, again trying to contact Mason, knocked on the door of Ellis' apartment. Mason still did not want to speak with defendant, but defendant opened the door and entered the apartment. Ellis told defendant to leave and tried to push him out. Defendant told Mason to get up off the floor where she was sitting. Mason refused, and defendant pulled out a loaded gun, cocked it and pointed it close to Mason's chest. Mason told defendant to remove the gun from the apartment. As defendant handed the gun to a person standing outside the apartment, the gun discharged. Defendant moved toward Mason and the two yelled at each other. D efendant then pulled Mason and ripped her shirt, bra and necklace. Defendant punched Mason in the face, chest, arm and head. Defendant dragged Mason down the hallway towards the bedroom, while she struggled to get away. At this point, Ellis intervened and tried to get defendant away from Mason. As all three fought, they ended up in the living room. Ellis opened the front door and told defendant to leave the apartment, while defendant tried to take Mason outside. In the meantime, Mason fell and defendant stood over her, swung at her, spat on her and said he would kill her and her family. While Ellis tried to restrain defendant and get him out of the apartment, Mason got up and called the police. Defendant left after having been there a total ofthirty to forty-five minutes.
    Upon conviction defendant was sentenced to nineteen to twenty-three months imprisonment for breaking and entering and attempted second degree kidnapping, and to a consecutive sentence of 150 days imprisonment for assault by pointing a gun and assault on a female. Defendant appeals.

    On appeal defendant raises the following issues: whether the trial court erred in denying defendant's motions (I) to dismiss the attempted second-degree kidnapping charge; (II) for jury instructions as to the kidnapping charge; and (III) to dismiss the assault on a female charge.
    Defendant argues the trial court erred in denying his motion to dismiss the attempted second-degree kidnapping charge. Defendant contends that evidence presented by the State did not rise to the level of terror required by the kidnapping statute. We disagree.
    Second degree kidnapping, in pertinent part, is defined as:
        (a) Any person who shall unlawfully confine, restrain, or remove from one place to another, . . . shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of . . . (3) [T]errorizing the person so confined, restrained or removed or any other person. . . . (b) If the personkidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted [, the offense is second degree kidnapping.]

N.C. Gen. Stat. § 14-39 (2005).
    In order to survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). “'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” Id. at 717, 483 S.E.2d at 434 (citation omitted). “Terrorizing is defined as 'more than just putting another in fear. It means putting that person in some high degree of fear, a state of intense fright or apprehension.'” State v. Davis, 340 N.C. 1, 24, 455 S.E.2d 627, 639, cert. denied, 516 U.S. 846, 133 L. Ed. 2d 83 (1995) (quoting State v. Moore, 315 N.C. 738, 745, 340 S.E.2d 401, 405 (1986)).
    Defendant challenges only the sufficiency of the evidence as to “intent” to terrorize. In determining the sufficiency of the evidence, “the test is not whether subjectively the victim was in fact terrorized, but whether the evidence supports a finding that the defendant's purpose was to terrorize” the victim. Davis at 24, 455 S.E.2d at 639 (quotation omitted). Even though the victim's subjective feelings are relevant, they are not determinative. State v. Baldwin, 141 N.C. App. 596, 604, 540 S.E.2d 815, 821 (2000).
    In this case, defendant entered Ellis' apartment without permission and after repeatedly being denied contact with Mason. Defendant was told to leave, but instead pointed a loaded gun at Mason's chest. Upon hearing defendant cock the gun, Mason said “all [she] could see was [her] life flash before [her.]” Mason tried to get away from defendant, but he grabbed her, ripping her shirt, bra and necklace, then punched her and dragged her down the hallway toward the bedroom. Defendant told Mason he would kill her and her family. Finally, defendant spit on her. This evidence, when taken in the light most favorable to the State, was sufficient to prove that defendant intended to and in fact did place Mason in intense fear for the purpose of terrorizing her. See State v. Banks, 163 N.C. App. 31, 35, 591 S.E.2d 917, 920 (2004) (sufficient circumstantial evidence for the jury to find the defendant terrorized the victim where he pushed and dragged the victim out of the house at gunpoint while the victim cried and screamed); see also State v. Williams, 127 N.C. App. 464, 467-68, 490 S.E.2d 583, 586 (1997) (defendant's pointing of what appeared to be a gun at victim during restraint accompanied by threats to kill are sufficient evidence of intent to terrorize). Accordingly, this assignment of error is overruled.
    Defendant next contends the trial court failed to instruct the jury properly on the offenses of attempted second-degree kidnapping and attempted false imprisonment. Specifically, defendant claims the trial court's instructions to the jury lacked precision. We disagree.
    N.C. Gen. Stat. § 15A-1231 (a) provides “[a]t the close of the evidence or at an earlier time directed by the judge, any party may tender written instructions.” N.C. Gen. Stat. § 15A-1231(a) (2005). Requests for special instructions to the jury must be “(1) [i]n writing, (2) [e]ntitled in the cause, and (3) [s]igned by counsel submitting them.” N.C. Gen. Stat. § 1-181 (a) (2005). Where an instruction is not in writing and signed pursuant to [N.C.G.S. § 1-181], it is within the discretion of the trial judge to give or refuse such instruction. State v. Harris, 67 N.C. App. 97, 102, 312 S.E.2d 541, 544 (1984); State v. Lang, 46 N.C. App. 138, 143, 264 S.E.2d 821, 825, remanded on other grounds, 301 N.C. 508, 272 S.E.2d 123 (1980).
    Defendant concedes he made an oral request for special jury instructions at trial. State v. Holmes, 355 N.C. 719, 741, 565 S.E.2d 154, 169 (2002) (Defendant did not properly request a jury instruction where “[t]he transcript reveals that defendant made only an oral request for the [jury] instruction.”). Defensecounsel requested the instructions be “broken up”, stating he “would like it better if [the elements within the instructions] were individually numbered 1, 2, 3 and 4, instead of 1 and 2.” When asked by the trial court whether the pattern jury instructions included the elements, defense counsel admitted the instructions contained “everything [he] would like it to contain.” When asked whether the pattern jury instructions had all the elements of the charged offenses, defense counsel stated they did. See N.C.P.I.-- Crim. 201.10 (general attempt); N.C.P.I.--Crim. 210.15 (false imprisonment); N.C.P.I.--Crim. 210.30 (second degree kidnapping). The trial court included the elements of attempt within the elements of the offenses and correctly stated the substantive law. Defendant has made no showing that the trial court abused its discretion in denying his oral request that instructions be broken up or individually numbered. The trial court properly instructed the jury. T his assignment of error is overruled.
    Defendant contends that the trial court erred in denying his motion to dismiss the assault on a female charge because N.C. Gen. Stat. § 14-33(c) is unconstitutional.
     We note, however, that this statute has previously been held constitutional by this Court in State v. Gurganus, 39 N.C. App. 395, 250 S.E.2d 668 (1979). In Gurganus, this Court applied the“intermediate scrutiny test” to the assault on a female statute (N.C.G.S. § 14-33(b)(2) ) as follows:
        First, the classification by gender must serve “important” governmental objectives. Second, the classification by gender must be “substantially related to achievement of those objectives.

Id. at 399, 250 S.E.2d at 671. This Court found that the statute “meets both these requirements and is in no way violative of the letter or spirit of the Fourteenth Amendment.” Id. “[A]n analytical approach taking into account [average physical] differences is an entirely valid approach . . . when distinguishing classes of direct physical violence.” Id. at 401, 250 S.E.2d at 673.
        G.S. 14-33(b)(2) establishes classifications by gender which serve important governmental objectives and are substantially related to achievement of those objectives. Therefore, we hold that the statute does not deny males equal protection of law in violation of the Fourteenth Amendment to the Constitution of the United States.

Id. at 402, 250 S.E.2d at 673. Because State v. Gurganus is clearly controlling on this issue, this assignment of error is overruled.
    No error.
    Chief Judge MARTIN and Judge GEER concur.
    Report per Rule 30(e).

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