Opinion
No. COA02-317
Filed 20 May 2003 This case not for publication
Appeal by defendant from judgments entered 2 May 2001 by Judge Paul L. Jones in Wayne County Superior Court. Heard in the Court of Appeals 14 April 2003.
Attorney General Roy Cooper, by Assistant Attorney General Robert M. Curran, for the State. Kevin F. MacQueen for defendant-appellant.
Wayne County Nos. 00 CRS 053555, 053603.
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 over to 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 possession of 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 having been 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 and physical 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).