STATE of North Carolina
v.
Terry Bruce BALDWIN.
No. 8229SC667.
Court of Appeals of North Carolina.
April 19, 1983.*727 Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. Marilyn R. Rich, Raleigh, for the State.
Appellate Defender Adam Stein, by Asst. Appellate Defender Marc D. Towler, Raleigh, for the defendant-appellant.
PHILLIPS, Judge.
Under G.S. § 14-39(a), unlawfully confining, restraining, or removing a person from one place to another without the consent of such person is kidnapping if one of the purposes of such confinement, restraint or removal is for the purpose of "terrorizing the person so confined, restrained, or removed...." It is under that part of the statute that defendant was indicted, tried and convicted.
Defense counsel stoutly contendsand has at every opportunity since the State restedthat the evidence does not suffice to show that defendant's purpose was to terrorize these youngsters and that the case against him should therefore be dismissed. Bearing in mind the oft-cited rules that we are obliged to follow in matters of this kind, a repetition of which here would be superfluous, we disagree.
Gratuitously accosting three smaller and younger boys in a strange, unprotected place at midnight, belligerently telling them what a rough character he was, ordering them to move or not move as he saw fit, taking over the operation of their car, and threatening to kill or send all of them to the hospital if they did not do his bidding, as the State's evidence tended to show happened, was basis enough, we think, for the jury finding that defendant's purpose was to terrorize all of them.
But those were just the circumstances that existed before two of the three youngsters escaped defendant's control. The circumstances that defendant created thereafter, according to the State's evidence, make it even more likely that defendant's purpose was as charged. By then, so the State's evidence tends to show, defendant knew that the two younger boys were frightened sufficiently to jump from the car and dash wildly off into the night and that Stamey was sufficiently cowered to have done his bidding from the outset. Yet, instead of attempting to allay Stamey's fears, by telling him that he was just joking and joining Stamey in finding the other boys and demonstrating that no harm was intended, as one with an innocent purpose might be expected to do under such circumstances, the State's evidence shows that defendant thereafter dragged Stamey into the front seat of his car, drove away over his protests, slapped him in the face twice, traveled several miles into the country, and told Stamey that he was going to throw him off a bridge.
That defendant apparently had no weapon and may even have been incapable of fully carrying out his threats, particularly while the three boys were still together, did not require an acquittal, as the defendant contends. Since the crime defendant was convicted of did not involve a purpose to kill or maim, but a purpose to terrorize[State v. McRae, 58 N.C.App. 225, 292 S.E.2d 778 (1982); State v. Jones, 36 N.C.App. 447, 244 S.E.2d 709 (1978)] that is the capacity that the jury had to consider, along with the way that that capacity was used. And as the record plainly shows, in concluding that the defendant did have the capacity to terrify these youngsters and used it for that purpose, the jury was not without justification.
Defendant also cites the following part of the Court's charge to the jury (and *728 others like it when charging on the other indictments) as being an expression of opinion about a disputed fact, and thus violative of G.S. 15A-1212:
So I charge you that if you find from the evidence beyond a reasonable doubt that on or about August 29th, 1981, the defendant Terry Bruce Baldwin, unlawfully removed Terry Douglas Stamey from a fast food place in Hendersonville and carried him in an automobile and that Terry Douglas Stamey did not consent to this removal and that this was done for the purpose of terrorizing Terry Douglas Stamey by threatening to throw him out of the automobile from a bridge, threatening to kill him, put him in the hospital or by hitting him in the face, and that Terry Douglas Stamey was not released in a safe place, it would be your duty to return a verdict of guilty of first degree kidnapping of Terry Douglas Stamey.... [Emphasis added.]
The defendant contends that by these words the Judge in effect told the jury that if they found that the defendant made the threatening statements attributed to him that the defendant's purpose to terrorize would be established thereby. We think otherwise. The instruction is in the usual form approved by many decisions of our Supreme Court and is in keeping with the Pattern Instructions adopted by the North Carolina Conference of Superior Court Judges. The usual "if you find" that the instruction starts out with manifestly applies to each of the phrases that follow it, including the purpose to terrorize phrase; and we are satisfied that the jury understood from it that none of the possible facts stated therein had already been established, but that all of them were for their consideration and determination.
But defendant's contention that the indictment charging him with the first degree kidnapping of Terry Stamey is insufficient to support a conviction of that offense is well taken. Paragraph (b) of N.C.Gen. Stat. 14-39 provides as follows:
(b) There shall be two degrees of kidnapping as defined by subsection (a). If the person kidnapped either was not released... in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree and is punishable as a Class D felony. If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree and is punishable as a Class E felony.
Thus one of the essential elements of first degree kidnapping is that the person kidnapped was either not released by the defendant in a safe place, was seriously injured, or was sexually assaulted. Yet this element is not mentioned in the indictment. Since there was no serious injury or sexual assault, and the State's case was that Stamey wasn't released at all, but escaped, it might appear at first blush that alleging that he was not released in a safe place was unnecessary; but our law is otherwise. No indictment is sufficient if it does not accurately and clearly allege all the essential elements of the charged offense. State v. Perry, 291 N.C. 586, 231 S.E.2d 262 (1977); State v. King, 285 N.C. 305, 204 S.E.2d 667 (1974).
But since the indictment does accurately and clearly charge all the elements of kidnapping in the second degree, we are of the opinion that the case should be remanded for entry of judgment as on a verdict of guilty of that offense. This course has been approved in previous cases and cannot prejudice the defendant, since the evidence is not only sufficient to establish that offense, but the higher one as well. See, for example, State v. Dawkins, 305 N.C. 289, 287 S.E.2d 885 (1982).
Remanded for Judgment.
WEBB and BECTON, JJ., concur.