Appeal by juvenile from an order entered 21 July 2004 by Judge
Marcia H. Morey in Durham County District Court. Heard in the
Court of Appeals 16 November 2005.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Alexander M. Hightower, for the State.
Russell J. Hollers III for juvenile-appellant.
HUNTER, Judge.
B.D.W., a juvenile, appeals from a final order adjudicating
him delinquent on two counts of second degree kidnapping, one count
of common law robbery, and two counts of simple assault. For thereasons stated herein, we vacate the adjudications of delinquency
as to the two counts of second degree kidnapping.
The State presented evidence tending to show that on 21 June
2004, B.D.W., a thirteen-year-old male, gained access along with
two other male juveniles to a neighborhood pool by climbing a
fence. Two other boys, C.S., an eleven-year-old, and H.W., a
thirteen-year-old, were already swimming at the pool. C.S. and
H.W. attempted to leave the pool, but were threatened by B.D.W. and
the other juveniles and forced into the girls' bathroom.
B.D.W. took a hat and the access key to the pool from H.W. and
a bicycle from C.S. B.D.W. then blocked the bathroom door while
the other juveniles forced C.S. and H.W. to remove their clothes,
kiss one another, and lick one another's bodies, including
genitalia. B.D.W. and another juvenile also hit C.S. and H.W. in
the face and body before releasing them. The hat and key were
recovered from B.D.W. B.D.W. testified at the hearing.
The trial court adjudicated B.D.W. delinquent as to two counts
of kidnapping, two counts of assault, and one count of common law
robbery. After a dispositional hearing, the trial court ordered
B.D.W. committed to the Department of Juvenile Justice for
confinement in a Youth Detention Center for not less than sixteen
months. B.D.W. appeals.
I.
[1] B.D.W. contends the trial court erred in adjudicating
B.D.W. delinquent on the charges of second degree kidnapping as the
indictment failed to allege all elements of the crime. We agree. “When a petition is fatally deficient, it is inoperative and
fails to evoke the jurisdiction of the court.”
In re J.F.M. &
T.J.B., 168 N.C. App. 143, 150, 607 S.E.2d 304, 309,
appeal
dismissed and disc. review denied, 359 N.C. 411, 612 S.E.2d 320
(2005). “Because juvenile petitions are generally held to the
standards of a criminal indictment, we consider the requirements of
the indictments of the offenses at issue.”
Id.
B.D.W. was charged with second degree kidnapping under N.C.
Gen. Stat. § 14-39 (2005). Section 14-39 sets out the elements of
kidnapping as follows:
(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, or
any other person under the age of 16 years
without the consent of a parent or legal
custodian of such person, shall be guilty of
kidnapping if such confinement, restraint or
removal is for the purpose of:
(1) Holding such other person for a
ransom or as a hostage or using such
other person as a shield; or
(2) Facilitating the commission of any
felony or facilitating flight of any
person following the commission of a
felony; or
(3) Doing serious bodily harm to or
terrorizing the person so confined,
restrained or removed or any other
person; or
(4) Holding such other person in
involuntary servitude in violation
of G.S. 14-43.2.
Id. “Since kidnapping is a specific intent crime, the State must
prove that the defendant unlawfully confined, restrained, orremoved the person for one of the eight purposes set out in the
statute.”
State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404
(1986). “The indictment in a kidnapping case must allege the
purpose or purposes upon which the State intends to rely, and the
State is restricted at trial to proving the purposes alleged in the
indictment.”
Id.
Here, the petition for delinquency states that “the juvenile
unlawfully, willfully and feloniously, did: . . . kidnap H.W.[,]
a person under the age of 16 years by unlawfully restraining him
without the consent of his parent or legal guardian pursuant to
G.S. 14-39.” An otherwise identical petition naming C.S. as the
victim was submitted for the second charge of second degree
kidnapping. The indictments here fail to set out one of the eight
purposes required by statute for proof of kidnapping, and are
therefore fatally defective.
The State contends that the failure to include the purpose for
which the kidnapping was conducted is not fatally defective, as
sufficient notice of the element was provided by the accompanying
petitions alleging common law robbery and sex offense arising from
the same transaction. Our Court has previously addressed this
argument and found it to be without merit.
In
State v. Moses, 154 N.C. App. 332, 572 S.E.2d 223 (2002),
the defendant was indicted for two charges arising from the same
transaction, robbery with a dangerous weapon, and assault with a
deadly weapon inflicting serious injury.
Id. at 335-36, 572 S.E.2d
at 226. The indictment for assault with a deadly weapon wasdefective as it failed to identify the deadly weapon used in the
assault.
Id. at 336, 572 S.E.2d at 226. However, the indictment
for robbery with a dangerous weapon identified the weapon as a
bottle, and the State contended the defendant was therefore
properly given notice as to the element of the deadly weapon in the
assault charge.
Id.
Moses recognized that “'[i]t is settled law
that each count of an indictment containing several counts should
be complete in itself.'”
Id. at 336, 572 S.E.2d at 226 (citations
omitted).
Moses held that although “allegations in one count may
be incorporated by reference in another count[,]”
id. at 336, 572
S.E.2d at 226-27, when an indictment fails to include an essential
element and does not incorporate by reference another indictment,
the indictment “does not adequately enable defendant to prepare for
trial and avoid the possibility of double jeopardy, or allow the
court to enter judgment on the offense.”
Id. at 337, 572 S.E.2d at
227.
As in
Moses, the petition here failed to include an essential
element and did not incorporate by reference the other petitions
alleging common law robbery and sex offense. As “'each count of an
indictment containing several counts should be complete in
itself[,]'” and the petitions here as to kidnapping omitted an
essential element, the adjudication as to these offenses must be
vacated.
Id. at 336, 572 S.E.2d at 226 (citations omitted).
“'The crime of false imprisonment is a lesser included offense
of the crime of kidnapping.'”
State v. Harrison, 169 N.C. App.
257, 265, 610 S.E.2d 407, 414 (citations omitted),
disc. review onadditional issues denied, 360 N.C. ___, ___ S.E.2d ___ (No. 228A05
filed 6 October 2005). “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.
Surrett, 109 N.C. App. 344, 350, 427 S.E.2d 124, 127 (1993). “If
the purpose of the restraint was to accomplish one of the purposes
enumerated in the kidnapping statute then the offense is
kidnapping.”
Id. at 350, 427 S.E.2d at 127-28. “If, however, an
unlawful restraint occurs without any of the purposes specified in
the statute the offense is false imprisonment.”
Id. at 350, 427
S.E.2d at 128.
Here, the trial court's adjudication of B.D.W. as delinquent
as to the two counts of second degree kidnapping contains all the
elements of false imprisonment. We therefore remand for imposition
of adjudication on two counts of false imprisonment and entry of
a disposition consistent with the adjudication.
See State v.
Miller, 146 N.C. App. 494, 504-05, 553 S.E.2d 410, 417 (2001)
(remanding for imposition of judgment and resentencing on lesser
included false imprisonment when jury's verdict of guilty of second
degree kidnapping contained all the elements of the lesser included
offense of false imprisonment, and evidence was insufficient to
prove kidnapping purpose alleged in indictment).
II.
[2] Plaintiff also filed a motion with this Court to declare
an amendment by the trial court to the juvenile petitions a
nullity. For the following reasons, we grant this motion. B.D.W. gave notice of appeal on 27 July 2004, and filed his
appellant's brief, concerning the assignment of error addressed
supra, with this Court on 1 June 2005. A hearing was held on 16
June 2005 regarding B.D.W.'s continued detention pending appeal,
pursuant to N.C. Gen. Stat. § 7B-2605 (2005).
During that hearing, the State made an oral motion to amend
the alleged defective kidnapping petitions to include the missing
element. Arguments on this motion were heard on 29 July 2005 and
the motion to amend the petitions was granted on 3 August 2005 by
the trial court.
Although the trial court had jurisdiction under section 7B-
2605 to enter an order as to B.D.W.'s custody pending the appeal to
this Court of the disposition, this specific exception to N.C. Gen.
Stat. § 1-294 relates only to matters affecting the custody or
placement of the juvenile.
See In re Huber, 57 N.C. App. 453, 459,
291 S.E.2d 916, 920 (1982). N.C. Gen. Stat. § 1-294 (2005) states
that “[w]hen an appeal is perfected as provided by this Article it
stays all further proceedings in the court below upon the judgment
appealed from, or upon the matter embraced therein[.]”
Id.
As the trial court lacked jurisdiction to amend the petition
in 2005 after B.D.W. perfected his appeal to this Court in 2004,
such amendment is a nullity and we, therefore, grant plaintiff's
motion.
See In re Miller, 162 N.C. App. 355, 359, 590 S.E.2d 864,
866 (2004).
Vacate and remand for imposition of adjudication and sentence
on false imprisonment. Judges McCULLOUGH and GEER concur.
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