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State v. Blizzard4/5/2005
ion of a felony, (3) doing serious bodily harm to or terrorizing the person, or (4) holding that person in involuntary servitude. N.C.G.S. § 14-39(a) (2003). Kidnapping is considered to be in the first-degree when the kidnapped person is not released in a safe place or is seriously injured or sexually assaulted during the commission of the kidnapping. N.C.G.S. § 14-39(b).
Id. at 25, 603 S.E.2d at 110 (citations omitted); N.C. Gen. Stat. § 14-39 (2003). The element of "confinement, restraint, or removal" requires "a removal separate and apart from that which is an inherent, inevitable part of the commission of another felony." State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981); see also State v. Mebane, 106 N.C. App. 516, 532, 418 S.E.2d 245, 255 ("restraint, confinement, and asportation of a rape victim may constitute kidnapping if it is a separate, complete act, independent of and apart from the rape"), disc. rev. denied, 332 N.C. 670, 424 S.E.2d 414 (1992). "Asportation of a rape victim is sufficient to support a charge of kidnapping if the defendant could have perpetrated the offense when he first threatened the victim, and instead, took the victim to a more secluded area to prevent others from witnessing or hindering the rape." State v. Walker, 84 N.C. App. 540, 543, 353 S.E.2d 245, 247 (1987). Evidence tending to show the rape victim was forced down a hallway from one room to another was a sufficient asportation separate and independent of the elements of rape to support a conviction for second-degreekidnapping. State v. Mangum, 158 N.C. App. 187, 195, 580 S.E.2d 750, 755, cert. denied, 357 N.C. 510, 588 S.E.2d 378 (2003) ("Kidnapping, whether in the first or second degree, requires the unlawful restraint or confinement of a person . . . .").
The State presented evidence that defendant forced himself into the victim's home, locked the door behind him, held the victim at knife point, demanded she perform and received oral sex, forced her into a bedroom, and engaged in non-consensual sexual intercourse with her. Under the holding in Mangum and cases cited therein, defendant's forcible movement of the victim from the front of her home to the bedroom was a sufficient asportation to support kidnapping in addition to the rape. 158 N.C. App. at 195, 580 S.E.2d at 755-56. Defendant forced the victim to perform oral sex at knife point at the front of the house, indicating he could have continued the assault there. Walker, 84 N.C. App. at 543, 353 S.E.2d at 247. Instead, he moved her under knife point away from the front door to the bedroom to engage in non-consensual sexual intercourse.
Taken in the light most favorable to the State and providing the State the benefit of every reasonable inference from the evidence, substantial evidence exists to deny defendant's motion to dismiss the charge of first-degree kidnapping. Contradictions in the evidence are to be resolved in the State's favor. The trial court properly submitted the charge of first-degree kidnapping to the jury. The trial court correctly arrested judgment of the first- degree kidnapping conviction after the jury's verdict and sentenced defendant in the presumptive range of second-degree kidnapping. The trial court's decision is consistent with our Supreme Court's holding that a "defendant may not be separately punished for the offenses of first degree rape and first degree kidnapping where the rape is the sexual assault used to elevate kidnapping to first degree." State v. Mason, 317 N.C. 283, 292, 345 S.E.2d 195, 200 (1986). However, the holding in Mason does not affect the trial court's denial of defendant's motion to dismiss at the close of the State's evidence. The trial did not err in denying defendant's motion to
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