Opinion
No. COA09-723.
Filed February 16, 2010.
Davidson County Nos. 07CRS060067, 08CRS000720.
Appeal by Defendant from judgment entered 16 October 2008 by Judge Michael E. Beale in Superior Court, Davidson County. Heard in the Court of Appeals 17 November 2009.
Attorney General Roy Cooper, by Assistant Attorney General J. Joy Strickland, for the State.
Richard G. Roose, for Defendant-Appellant.
In a prosecution for kidnapping, a defendant's intent to terrorize may be inferred from the circumstances surrounding the events constituting the crime. In the present case, the evidence tended to show that Defendant John Edward Larson parked his car so as to block that of a high school female student ("student"); approached her driver's side door; reached through her partly opened window; grabbed her between the legs; and restrained her while she struggled against his grasp. Because a rational fact finder could infer from this conduct Defendant's attempt to terrorize, we find no error in the trial court's denial of Defendant's motion to dismiss the charge of second-degree kidnapping.
State v. Baldwin, 141 N.C. App. 596, 604-05, 540 S.E.2d 815, 821 (2000).
At trial, the State's evidence tended to show that on 28 October 2007, a 16-year-old high school student went by herself to a grocery store located in Davidson County. She parked her car at the side of the store, facing the building, and turned off the car. There was a car parked in each of the two spaces on either side of her vehicle. She was still seated in the driver's seat, wearing her seatbelt, when a vehicle pulled in directly behind her, with the driver's door facing her car. The vehicle blocked her vehicle in so that she couldn't drive away.
She observed the driver — the only person in the car — exit his vehicle and walk up to the driver's side window of her car. The man wore a ball cap, black shirt, and nothing from his waist down — no pants or underwear. The man pressed his erect penis against the driver's side window, which was partially open. He reached his left hand through the open window, rubbing the student's breast, and grabbed her "vaginal area." The student testified that the strength of the grab was such that she wasn't able to get away. She tried to move to the passenger area, but was unable because of the seatbelt. The student testified that she tried so hard to get away that it cracked her ribs. She grabbed the man's hand and twisted it until he pulled his hand out of the car.
The student testified that when the man grabbed her, she was "terrified." She testified that on a scale of one to ten, her emotions were "off the chart." The student told the man that she was going to call the police. The man then returned to his vehicle, a boxy, bluish-gray four-door. There was no license tag on the vehicle. The student ran into the grocery store and called her mother, but was unable to communicate because she was so upset.
The student later provided a statement to the Lexington Police Department regarding the incident. She viewed a photo lineup and she picked out a photograph of her assailant. She also identified a photograph of a vehicle that looked like the suspect's vehicle. At trial, the student identified Defendant as the man who exposed himself and assaulted her.
The State called four additional witnesses to testify to similar incidents involving the Defendant. This testimony was received over Defendant's objection for the limited purpose of establishing Defendant's identity as the perpetrator. Stacy Everhart testified that the day before the incident in question and in the same grocery store parking lot she observed Defendant sitting in his car with his exposed penis in his hand. Rhonda Borgman testified that she observed the Defendant, wearing no pants or underwear, fondling his penis in a parking lot on Talbert Boulevard on 24 October 2007. Summer Taylor testified that on 6 June 2007 Defendant, wearing no pants or underwear, had approached her vehicle in the same parking lot and tapped his erect penis against her driver's side window. She yelled, and Defendant retreated and drove away. Finally, Michelle Kepley testified that on 5 November 2007 she observed Defendant sitting in a vehicle in the grocery store parking lot on Talbert Boulevard, wearing no pants or underwear, holding his exposed penis in his hand.
On 14 October 2008, Defendant was tried for indecent exposure, assault on a female, second-degree kidnapping, and sexual battery. The State presented the evidence summarized above. Defendant presented evidence, and at the close of all the evidence made a motion to dismiss the charges. That motion was denied. On 16 October 2008, the jury returned a verdict of guilty on all four charges. Defendant now appeals, contending that the trial court erred in denying his motion to dismiss the charge of kidnapping on grounds that even in the light most favorable to the State, the evidence was insufficient, in violation of N.C. General Statute section 15A-1227 and the Fourteenth Amendment to the U.S. Constitution.
Defendant does not pursue his constitutional argument in his brief. We consider this argument abandoned. See N.C. R. App. P 28(a)(2010). Regarding Defendant's remaining arguments,
[i]t is an established principle of law that upon a motion to dismiss in a criminal action, all of the evidence, whether competent or incompetent, must be considered in the light most favorable to the state, and the state is entitled to every reasonable inference therefrom. . . . In considering a motion to dismiss, it is the duty of the court to ascertain whether there is substantial evidence of each essential element of the offense charged. 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) (citations omitted). This Court must determine "whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Barnette, 304 N.C. 447, 458, 284 S.E.2d 298, 305 (1981).
Defendant maintains that the State failed to establish that he had the purpose of terrorizing the student when he sexually assaulted her.
Kidnapping is a specific intent crime. See N.C. Gen. Stat. § 14-39 (2009). A person is guilty of kidnapping if he "unlawfully confine[s], restrain[s], or remove[s] 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. . . ." Id. In addition, the State must prove that the defendant acted with one of the purposes prescribed by 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.
The indictment in the present case alleged that Defendant kidnaped the student "for the purpose of terrorizing her." This Court has previously considered what quantum of evidence is necessary to establish an intent to terrorize:
In determining whether sufficient evidence was introduced to support the jury's determination that the defendant acted with the purpose of terrorizing [the victim], 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 her. Nonetheless, the victim's subjective feelings of fear, while not determinative of the defendant's intent to terrorize, are relevant. Terrorizing requires not only the intent to place the victim in a state of fear, but requires putting [the victim] in some high degree of fear, a state of intense fright or apprehension. The presence or absence of the defendant's intent or purpose to terrorize [the victim] may be inferred by the fact-finder from the circumstances surrounding the events constituting the alleged crime.
State v. Baldwin, 141 N.C. App. 596, 604-05, 540 S.E.2d 815, 821 (2000) (citations and internal quotation marks omitted). "A defendant's intent is rarely susceptible to proof by direct evidence; rather, it is shown by his actions and the circumstances surrounding his actions. Intent must be determined by a jury." State v. Rodriguez, 192 N.C. App. 178, 187-88, 664 S.E.2d 654, 660 (2008) (citations omitted).
Defendant raises essentially two arguments: (1) different intent, and (2) insufficient time. Defendant recognizes that the student was, in fact, terrified by the incident. But he asserts the test focuses more on the intent of the perpetrator, than on the effect on the student. See Moore, 315 N.C. at 745, 340 S.E.2d at 405. Defendant concedes that the jury correctly found that the sexual battery was for the purpose of sexual gratification. Defendant contends, however, that there was no evidence tending to show that Defendant had the additional purpose of terrorizing the student. "All the evidence shows that the acts of the Defendant were committed for the purpose of sexual gratification." Defendant argues that because his intent was sexual gratification, it could not also have been the separate and distinct intent to terrorize.
Defendant next contends that other cases faced with the same inquiry "have given a great weight to the amount of time involved in the restraining incident." In State v. Moore, for example, our Supreme Court stated that the evidence would support a finding of defendant's intent to terrorize when he held the victim at gunpoint for almost three hours after inflicting a head injury on the victim. Id. at 745-46, 340 S.E.2d at 406. In State v. Baldwin, this Court indicated that the evidence would support a finding of defendant's intent to terrorize when defendant confined the victim for close to twenty hours. Baldwin, 141 N.C. App at 605, 540 S.E.2d at 822. By contrast, this case involved only "a momentary encounter."
Regarding Defendant's different intent argument, the State replies that the Defendant's actions show that "there was intent to do more than commit a crime for his own sexual gratification." Here, Defendant did more than just sit in his car and fondle himself, as he had done on prior occasions. Instead, he knowingly confined and restrained the student when he parked his car behind her car so that she was prevented from driving away. Furthermore, Defendant reached through her car window and grabbed the student such that she could not escape. The State points out that the student in this case was, in fact, terrified, and that this Court may consider that as a factor. See Baldwin, 141 N.C. App. at 604, 540 S.E.2d at 821.
Regarding Defendant's insufficient time argument, the State directs our attention to State v. Surrett, 109 N.C. App. 344, 427 S.E.2d 124 (1993). In Surrett, defendant approached a female in the parking lot of a grocery store; grabbed her; and pushed her into his vehicle. Id. at 346, 427 S.E.2d at 125. The female responded by kicking and fighting, but defendant forced her into the car and followed her in. Id. Defendant instructed the female to "lay down and be quiet." Id. The female escaped by crawling out the passenger side window as defendant was driving away with her. Id. The incident took between forty-five seconds to one and a half minutes. Id. at 347, 427 S.E.2d at 125. This Court held that the facts were sufficient to support a finding of the defendant's intent to terrorize.
Our Supreme Court in construing this statute has noted that "it was clearly the intent of the legislature to make resort to a tape measure or a stop watch unnecessary in determining whether the crime of kidnapping has been committed." State v. Fulcher, 294 N.C. 503, 522, 243 S.E.2d 338, 351 (1978). In Fulcher the Supreme Court specifically rejected the notion that "`confinement' or `restraint', as used in this statute, means confinement or restraint `for a substantial period'. . . ."
Id. at 349, 427 S.E.2d at 127.
Our Supreme Court has specifically rejected the chronological argument advanced by Defendant. Id. Consequently we refuse to inject an element of "substantial time" into the statutory language. See Fulcher, 294 N.C. at 522, 243 S.E.2d at 351. Defendant's insufficient time argument is without merit.
Defendant further presents a "different intent" argument on the issue of whether the evidence was sufficient to show his intent to terrorize. In other circumstances, a defendant's indifference to his victim's suffering could clearly manifest an intent to terrorize. But this Defendant appears genuinely oblivious to the effect that his behavior has on his victims. The determination of his intent is difficult in this case precisely because Defendant's behavior is so outrageous. The perversity of his conduct taken as a whole makes his motive nearly inscrutable. Recognizing this obstacle, we recognize also that it is not our role to psychoanalyze Defendant. We must decide only whether a rational fact finder could have concluded beyond a reasonable doubt that Defendant by his conduct intended to terrorize the student in this case. See Barnette, 304 N.C. at 458, 284 S.E.2d at 305.
The State's evidence tended to show that Defendant blocked the student's car by parking his vehicle behind hers. He approached the driver's side door and reached through the partially open window. Defendant grabbed the student and would not let go. The student testified that she struggled so forcefully that she cracked her ribs. She was apparently able to free herself only by injuring Defendant's hand. No one disputes that the student was terrified.
The student testified on cross-examination that, when Defendant withdrew his hand from her vehicle, it looked like she had broken his finger.
Defendant's conduct could support a reasonable inference that he intended to put the student into a state of intense fright. The fact that Defendant's conduct also supports a finding that the battery was motivated by an intent to achieve sexual gratification does not change this result. The two intents are not mutually exclusive as they account for different aspects of the same encounter. See Fulcher, 294 N.C. at 522-23, 243 S.E.2d at 351-52. ("[I]t is well established that two or more criminal offenses may grow out of the same course of action, as where one offense is committed with the intent thereafter to commit the other and is actually followed by the commission of the other. . . .")
In sum, we conclude that the State introduced sufficient evidence from which a rational trier of fact could have concluded beyond a reasonable doubt that Defendant acted with the purpose of terrorizing the student in this case. Accordingly, we hold that the trial court did not err in denying Defendant's motion to dismiss the charge of second-degree kidnapping.
No error.
Judge CALABRIA and Judge BEASLEY concur.
Report per Rule 30(e).