An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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_1539

NORTH CAROLINA COURT OF APPEALS

Filed: 17 January 2006

STATE OF NORTH CAROLINA

v .                         Hertford County
                            No. 03 CRS 51061
JOSEPH DAVID HENDRICKS,
        Defendant.

    Appeal by defendant from judgments entered 9 July 2004 by Judge William Griffin in Hertford County Superior Court. Heard in the Court of Appeals 15 June 2005.

    Attorney General Roy Cooper, by Assistant Attorney General J. Bruce McKinney, for the State.

    Kevin P. Bradley for defendant-appellant.

    GEER, Judge.

    Defendant Joseph David Hendricks appeals from his conviction for second degree kidnapping. Defendant contends on appeal that the trial court erred in failing to dismiss the charge for lack of evidence of a purpose to terrorize the victim and, alternatively, that the court committed plain error in failing to instruct on the lesser-included offense of false imprisonment. Based on our review of the record, we hold that the trial court properly denied the motion to dismiss and was not required to instruct the jury as to the offense of false imprisonment.

Facts

    The State's evidence tended to show the following. On 15 December 2003, after a day of hunting, Jeffrey White ("White"), thevictim, and his hunting companion, Tommy White ("T. White"), went in search of two missing hunting dogs. T. White drove his truck and used an electronic tracking device, while White remained parked in his own truck on Railroad Street. T. White located one of the dogs in the yard of a nearby residence that belonged to defendant and his wife Patricia. As he entered the driveway in his truck, Mrs. Hendricks emerged from the house and yelled at him, asking if he had a gun and whether he was "shoot[ing] to kill." Although T. White explained that he was tracking a dog, which was in their yard, Mrs. Hendricks went back into the trailer and called her husband to tell him there was a man with a gun on their property.
    T. White then caught his dog and returned to where White was waiting on Railroad Street. While T. White left again in search of the second dog, White agreed to stay where he was to watch for the second dog in that area. Immediately after T. White drove off, a van, driven by defendant and blowing its horn continuously, drove up behind White's truck. White approached the van to find out why defendant was blowing his horn. Defendant asked White if he had been hunting "around here." White said "no," but admitted he had been hunting in the vicinity.
    Upon hearing that, defendant pulled out a small handgun, pointed it at White, and told him he was going to take him "back there" to find out from his wife whether White was the person who had been on their property. Defendant then ordered White to walk down a lane to a trailer belonging to defendant's brother-in-law, Ronnie Hendricks. As they walked, defendant kept his gun pointedat White and, according to White, "told [White] a couple of times to get out in front of him, that he'd kill [White], that he'd shoot [White] anyway, it didn't matter to him." White testified that defendant "scared the ever loving tar out of me. He made me wet my pants, I mean underwear and pants and everything. I was terrified and scared. Somebody pull a gun on you. . . . I was scared to death, terrified, horrified, any adjective like to describe any emotion, anything."
     Arriving at the trailer, defendant found his brother-in-law and asked what he thought defendant should do with White. The brother-in-law advised defendant not to kill White and recommended instead that defendant "beat the hell out of [him] and then call the law." Defendant left to move his van and White's truck closer to the brother-in-law's residence while his brother-in-law watched White. When the brother-in-law looked away, White jumped off the porch and ran through some woods to a nearby store, where he telephoned the sheriff.
    Defendant was indicted with felony second degree kidnapping, misdemeanor assault by pointing a gun, and misdemeanor communicating threats. At trial, defendant testified that he received a telephone call from his wife, who was hysterical, asking where her gun was because there was a man at their house pointing a gun. Defendant immediately began driving home. When he reached the top of his driveway, he saw a pick-up truck, which he stopped by blowing his horn. Defendant testified that he argued with White about whether White had been at defendant's residence. He thenasked White whether he had any guns. Upon White's admitting that he did, defendant ran to White's truck, "grabbed [the guns] and the keys," and put them in his own truck, which he locked. Defendant denied pulling out a handgun, denied threatening to kill White, and claimed that White was not forced to walk with him to his brother- in-law's house.
    The jury convicted defendant of all three charges. With respect to the kidnapping charge, the trial court sentenced defendant to a term of 20 to 33 months, which was suspended with terms of special probation, including a four-month active sentence. With respect to the two misdemeanor charges, the trial court sentenced defendant to two active sentences of 45 and 60 days. Defendant challenges only his kidnapping conviction on appeal.
Discussion

    Defendant first argues that the trial court should have granted his motion to dismiss the second degree kidnapping charge. The kidnapping indictment alleged that defendant, in violation of N.C. Gen. Stat. § 14_39 (2003), "unlawfully, willfully and feloniously did kidnap Jeffrey Todd White, a person who has attained the age of 16 years[,] by unlawfully by [sic] removing from one place to another, without his consent and for the purpose of terrorizing Jeffrey Todd White." Defendant contends that the State presented insufficient evidence that defendant removed White for the purpose of terrorizing him.
    "On a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, giving the Statethe benefit of every reasonable inference to be drawn from it." State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382 (1988). If there is substantial evidence to support the charge against the defendant, the motion to dismiss should be denied. Id. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78_79, 265 S.E.2d 164, 169 (1980). The defendant's evidence, unless favorable to the State, is not to be taken into consideration. State v. Jones, 280 N.C. 60, 66, 184 S.E.2d 862, 866 (1971).
    "Terrorizing," for the purpose of N.C. Gen. Stat. § 14_39(a), has been defined as attempting to put the kidnapped person "in some high degree of fear, a state of intense fright or apprehension." State v. Moore, 315 N.C. 738, 745, 340 S.E.2d 401, 405 (1986). The kidnapping offense is "complete if [the defendant] at any time during the [restraint] had the requisite intent." State v. Franks, 74 N.C. App. 661, 667, 329 S.E.2d 717, 721, disc. review denied, 314 N.C. 333, 333 S.E.2d 493 (1985). 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 presence or absence of the defendant's intent or purpose to terrorize . . . may be inferred by the fact-finder from the circumstances surrounding the events constituting the allegedcrime." State v. Baldwin, 141 N.C. App. 596, 605, 540 S.E.2d 815, 821 (2000) (citing State v. White, 307 N.C. 42, 48, 296 S.E.2d 267, 271 (1982)). In this case, a reasonable juror could find that defendant removed White for the purpose of terrorizing him based upon defendant's forcing White to march at gunpoint to defendant's brother-in-law's trailer; his statement multiple times that "he'd kill [White], that he'd shoot [him] anyway, it didn't matter to him"; and, once they reached the brother-in-law, defendant's and his brother-in-law's debate over whether defendant should kill White or simply "beat the hell out of [him]." Since defendant made no attempt to contact the police or his wife during this period, the jury could reasonably conclude that the purpose of defendant's taking White to his brother-in-law's house at gunpoint was to cause White "intense fright or apprehension," Moore, 315 N.C. at 745, 340 S.E.2d at 405, as punishment for his wife's extreme fright.
    Defendant mistakenly argues that White was terrorized not by the removal, but by the assault with the gun. The issue is not, however, whether White was in fact terrorized and why, but rather the nature of defendant's purpose in removing White to his brother- in-law's trailer. See id. ("[T]he test is not whether subjectively the victim was in fact terrorized, but whether . . . the defendant's purpose was to terrorize her."). Moreover, the gun was the means by which defendant accomplished the kidnapping and is circumstantial evidence, along with defendant's threats, of the purpose behind defendant's unlawful removal of White from his truck to his brother-in-law's house. See State v. Banks, 163 N.C. App.31, 35, 591 S.E.2d 917, 920 (holding that there was sufficient evidence that the defendant had an intent to terrorize when he pushed and dragged the victim out of a house at gunpoint), disc. review denied, 358 N.C. 377, 597 S.E.2d 767 (2004); State v. Claypoole, 118 N.C. App. 714, 717, 457 S.E.2d 322, 324 (1995) (holding that there was sufficient evidence of a purpose to terrorize when the defendant forced the victim to drive to a secluded area and threatened to kill her twice along the way).
    The trial court, therefore, properly concluded that the State presented sufficient evidence that defendant acted for the purpose of terrorizing his victim within the meaning of N.C. Gen. Stat. § 14_39(a)(3) and did not err in denying the motion to dismiss. This assignment of error is overruled.
    Alternatively, defendant argues that the trial judge committed plain error by failing to instruct the jury on the lesser-included offense of false imprisonment. Since defendant did not request this instruction at trial, we apply plain error review only. N.C.R. App. P. 10(c)(4). Under the plain error doctrine, the defendant "'must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.'" State v. Roseboro, 351 N.C. 536, 553, 528 S.E.2d 1, 12 (quoting State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993) ), cert. denied, 531 U.S. 1019, 148 L. Ed. 2d 498, 121 S. Ct. 582 (2000).
    False imprisonment is a lesser-included offense of kidnapping. State v. Kyle, 333 N.C. 687, 703, 430 S.E.2d 412, 421 (1993). "Thedifference between kidnapping and the lesser-included offense of false imprisonment is the purpose of the confinement, restraint, or removal of another person. The offense is kidnapping if the reason for the restraint was to accomplish one of the purposes enumerated in the kidnapping statute." 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). In the absence of one of the statutorily- specified purposes, the offense is false imprisonment.
    "Where the State presents evidence of every element of the [greater] 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." Id. In this case, defendant, in his testimony at trial, denied that he pulled out a handgun, that he threatened to kill White, or that he forced White to walk to his brother-in-law's house. He testified further:
            A. . . . [W]e got to arguing about he won't back there [at defendant's home]. I said well you just came out of there. I said I tell you what, let's go over and make a phone call and see about the wife because I was still worried about the wife. And so we started walking and walked over there and then I had my phone, I was trying to make a phone call. It's a lamp in the middle between my sister-in-law's trailer in the back. . . . I'm standing there and I'm trying to make the phone call and I can't see it good, I'm nervous so I said I tell you what. I said I'll be back. I'm going to call the sheriff and I'm going to get to the bottom of this.

            . . . .
            Q. Did you at any point tell him that you wanted to take him back there and let him see your wife?

            A. I asked him to let's go back and find out.

            Q. And you told him you were going to call the police; is that correct?

            A. Yes. And after I couldn't get him to go, I just said well I'll be back. I turned around and I went to home and called the sheriff's department.

    In short, defendant simply denied that he removed White. Since he denied that he removed White from one location to another without White's consent, the sole basis for the indictment, he also effectively denied falsely imprisoning White. As a result, the trial court was not required to instruct the jury as to the lesser- included offense of false imprisonment. Therefore, defendant's second assignment of error is also overruled.

    No error.
    Judges CALABRIA and ELMORE concur.
    Report per Rule 30(e).

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