Kidnapping

North Carolina statute G.S. 14-39 separates kidnapping into two degrees. A person is guilty of first degree kidnapping when he kidnaps a person and does not release the person in a safe place or the person has been seriously injured or sexually assaulted. A person is guilty of second degree kidnapping when he kidnaps a person and does release the person in a safe place and the person has not been seriously injured or sexually assaulted.

First degree kidnapping is punished as a Class C felony. A person convicted of a Class C felony receives a sentence between 44 and 182 months, depending on his prior convictions. Second degree kidnapping is punished as a Class E felony. A person convicted of a Class E felony receives a sentence between 15 and 63 months, depending on his prior convictions, and if the person has no prior convictions, it is possible that he can receive intermediate punishment instead of active jail time.

The kidnapping statute in North Carolina requires that the person kidnapped be confined, restrained or removed without his or her consent, if the person at least 16 years old. If the person is younger than 16 years old, then the person kidnapped must be confined, restrained or removed without the consent of the parent or legal custodian of the person kidnapped.

Lack of consent does not always mean that the defendant must remove a victim kicking and screaming. If a defendant induces a victim to be moved based on fraud or trickery, this can constitute lack of consent. For example, the North Carolina Court of Appeals held that a defendant removed a victim without her consent when the defendant induced the victim to get into his car based on the pretext that he would pay her for sex, but the defendant’s real intent was to assault the victim. The court reasoned that had the victim known of the defendant’s real intent, she would not have consented to have been moved.

There are certain felonies which have a certain amount of restraint of the victim inherent in them, such as forcible rape and armed robbery. The North Carolina Supreme Court has held that the restraint inherent in such felonies does not also permit a defendant to be convicted of kidnapping. So if a person holds up a convenient store and in the process thereof, he moves a person from the counter of the store to the back office, this movement does not constitute a kidnapping. However, if the restraint is a separate act from the underlying felony, a kidnapping conviction can be upheld. The North Carolina Court of Appeals explained that the evidence of restraint must be such that “a jury could reasonably find that the necessary restraint for kidnapping exposed the victim to greater danger than that inherent in the underlying felony itself.” Following this reasoning, the North Carolina Supreme Court upheld a kidnapping conviction where a defendant forced himself into the victim’s house and pulled the victim back into the house after the victim tried to escape prior to committing robbery.

North Carolina courts have attempted to distinguish cases of restraint. Some factors that they look at in determining whether the restraint involved was sufficient to uphold a kidnapping conviction are:

If a defendant has caused serious injury to a victim, this can elevate the charge to first degree kidnapping. North Carolina courts have deliberately chosen not to define what a serious injury is specifically, but a serious injury generally means a physical or bodily injury resulting from an assault. The courts have set out factors that are relevant in determining whether an injury is serious: “(1) pain and suffering; (2) loss of blood; (3) hospitalization; and (4) time lost from work.” Courts have cautioned, however, that hospitalization is not required for an injury to qualify as serious.

Whether a defendant releases a victim in a safe place can mean the difference between first and second degree kidnapping. North Carolina courts have held that the release of a victim to the police when the defendant has been cornered does not constitute releasing the victim in a safe place. On the other hand, where a defendant left a victim in a parking lot behind a motel in the middle of the afternoon and gave the victim change to make a phone call, the defendant did leave the victim in a safe place.

One basis to elevate a kidnapping charge to first degree kidnapping is the sexual assault of the person kidnapped. However, if a jury uses the sexual assault to elevate the kidnapping to first degree kidnapping, the defendant cannot be convicted of both first degree kidnapping and sexual assault. Alternatively, if a sexual assault occurs in addition to the kidnapping but the jury uses another factor (such as failure to release the victim in a safe place) to elevate the kidnapping to first degree kidnapping and indicates this finding on a special verdict form, the defendant can be convicted of both first degree kidnapping and sexual assault.

If you have been charged with kidnapping, call a criminal defense attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.