State v. Elder ( 2022 )

IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-142
No. 276A21
Filed 16 December 2022
STATE OF NORTH CAROLINA
v.
MICHAEL STEVEN ELDER
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 278 N.C. App. 493, 2021-NCCOA-350, finding no error, in part,
and reversing and remanding, in part, judgments entered on 3 April 2019 by Judge
Josephine Kerr Davis in Superior Court, Warren County, based upon defendant’s
convictions for felonious breaking and entering, common law robbery, assault
inflicting serious injury, second-degree sexual offense, first-degree rape, and two
counts of first-degree kidnapping. Heard in the Supreme Court on 31 August 2022.
Joshua H. Stein, Attorney General, by Benjamin O. Zellinger, Special Deputy
Attorney General, for the State-appellant.
Law Offices of Bill Ward & Kirby Smith, P.A., by Kirby H. Smith, III, for
defendant-appellee.
ERVIN, Justice.
¶1 The issue before the Court in this case is whether the trial court erred by
denying defendant’s motion to dismiss the second of two first-degree kidnapping
charges which rested upon an allegation that defendant had “unlawfully confin[ed],
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restrain[ed,] and remov[ed] [the victim] from one place to another without her
consent” for the purpose of facilitating the commission of a first-degree rape even
though the record evidence tended to show that one of the alleged kidnappings had
occurred after the commission of the rape had concluded. A majority of the Court of
Appeals held, in reliance upon State v. Morris, 147 N.C. App. 247 (2001), aff’d per
curiam, 355 N.C. 488 (2002), that the second of defendant’s first-degree kidnapping
convictions lacked sufficient record support. State v. Elder, 278 N.C. App. 493, 2021-
NCCOA-350, ¶¶ 35–37. The dissenting judge, on the other hand, concluded that the
second of defendant’s first-degree kidnapping convictions should be upheld on the
basis of State v. Hall, 305 N.C. 77 (1982), overruled on other grounds by State v. Diaz,
317 N.C. 545 (1986). Elder, ¶¶ 90–94 (Tyson, J., concurring, in part, and dissenting,
in part). After careful consideration of the parties’ arguments in light of the record
and the applicable law, we conclude that the Court of Appeals’ decision should be
affirmed and remand this case to the Court of Appeals for further remand to Superior
Court, Warren County, for further proceedings not inconsistent with this opinion.
I. Factual Background
A. Substantive Facts
¶2 On 7 July 2007, A.H.,1 who was 80 years old and lived alone, was tending to
the flower garden in front of her residence when she noticed a light-colored
1 We will refer to the victim by her initials in order to protect her identity.
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automobile driving slowly past her house. Upon hearing the car turn and begin
moving back in her direction, the victim entered her residence and locked the storm
door behind her. After the vehicle parked in the driveway, a man carrying a black
satchel approached the victim’s house and knocked on the door. Although the victim
opened the main door to speak with the man, she left the storm door locked. The man
offered to demonstrate a rug cleaning product that he claimed to want to sell to her,
but the victim informed the man that she was not interested in his proposal. As a
result, the man wrote his contact information on a piece of paper, which he presented
to the victim for the purpose of making sure that she would be able to get in touch
with him if she changed her mind.
¶3 When the victim unlocked and opened the screen door in order to retrieve the
paper, the man grabbed the victim’s wrist, pushed the door open, and entered the
house, at which point he demanded to know where the victim kept her money. After
the victim told the man that she did not have any money, the man forced the victim
into her bedroom, pushed her onto the bed, and began removing her clothes.
Although the victim begged the man not to harm her, he forcibly engaged in vaginal
intercourse with her before putting his penis into her mouth and attempting to make
her perform oral sex upon him.
¶4 After sexually assaulting the victim, the man began rifling through the
drawers in the victim’s dresser while demanding to know “where [the victim] kept
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her good stuff.” At the conclusion of his search for items of value, the man took
approximately $450 in cash from one of the victim’s pocketbooks along with the
victim’s food stamps, Medicaid card, and driver’s license. Although the victim
informed the man that her daughter was on the way, the man replied that he would
kill the victim if her daughter arrived before his departure.
¶5 After tying the victim up and placing her in her bedroom closet, the victim told
the man that she could not breathe. At that point, the man moved the victim to the
closet in a smaller, adjacent bedroom and tied her to a chair,2 told the victim that he
was going to take a shower, and warned the victim not to leave the room while he
was there. Following the man’s departure, the victim could hear water running in
the bathroom.
¶6 After some period of time had passed, the victim was able to untie herself.
Although the victim could still hear the sound of running water, she made her way to
the front window of the house, from which she could see that the intruder’s
automobile had departed. At that point, the victim entered the bathroom and
2 The record contained conflicting testimony concerning whether defendant placed the
victim in the second bedroom or in a closet within the second bedroom. Although this
discrepancy does not seem to us to have any material impact upon the manner in which the
case should be resolved, the fact that the verdict sheet upon which the jury recorded its
verdict indicates that the jury convicted defendant of first-degree kidnapping based upon his
actions in “moving [A.H.] from the bedroom to bedroom to a closet” leads us to conclude that
the jury found beyond a reasonable doubt that defendant placed the victim in a closet in the
second bedroom.
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discovered that it was empty despite the fact that the water was continuing to run in
the shower.
¶7 Upon attempting to telephone her daughter, Linda Carter, the victim reached
Ms. Carter’s husband, Harry Carter, whom she told that she had been raped and
robbed and from whom she pleaded for assistance. When the Carters arrived at the
victim’s residence a few minutes later, they discovered that the storm door had been
partially torn away from the door jam. According to Mr. Carter, the victim was “a
nervous wreck,” “very upset,” and “hysterical,” prompting Ms. Carter to call for
emergency assistance.
¶8 After emergency medical services personnel and officers from the Warren
County Sheriff’s Office arrived at the victim’s residence, the victim was transported
to Maria Parham Hospital in Louisburg. Due to the fact that Maria Parham did not
have a rape kit and was not staffed by personnel trained to administer one, the victim
was transferred to WakeMed Hospital, where she was seen by Sexual Assault Nurse
Examiner Cindy Carter. Nurse Carter performed a rape kit examination and
delivered the completed rape kit and other items of evidence that had been collected
from the victim to Detective Sergeant Ben Jackson of the Warren County Sheriff’s
Office, with the evidence in question having later been submitted to the State Crime
Laboratory for processing. In addition, Sergeant Jackson interviewed the victim
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before she was transferred to WakeMed, at which point she described the assault that
had been committed against her.
¶9 Special Agent Russell Holley of the Forensic Serology Unit of the State Crime
Laboratory examined samples that had been derived from the rape kit and detected
the presence of sperm cells in smears that had been collected from the victim and on
a cutting that had been taken from the underwear that the victim had been wearing
at the time of the assault. In addition, Forensic Scientist Supervisor Timothy Baize
of the State Crime Laboratory detected a DNA mixture on the victim’s underwear
that was consistent with that of the victim and an unknown male contributor.
¶ 10 At the time of the victim’s death on 18 December 2015, the perpetrator of the
assault that had been committed against her had not been identified. On 12 April
2016, Sergeant Jackson contacted the Forensic Investigations Division of the New
York City Police Department at the suggestion of the State Crime Laboratory. After
making contact with the New York City Police Department, Sergeant Jackson sought
and obtained a bill of indictment from the Warren County grand jury against Stephen
Davis charging him with having assaulted the victim, only to learn later that Mr.
Davis had been incarcerated on the date of the assault.3 After further
communications with the New York City Police Department, Sergeant Jackson
obtained a search warrant authorizing the seizure of a DNA sample from defendant.
3 The charges against Mr. Davis were later dismissed.
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On 18 July 2016, Sergeant Jackson traveled to Winston-Salem, where defendant was
living at the time and, along with officers from the Forsyth County Sheriff’s Office,
executed the search warrant and obtained a DNA sample from defendant. Sergeant
Jackson also interviewed defendant, who told Sergeant Jackson that he had not
assaulted the victim, that he was not familiar with Warren County, and that he was
willing to submit to a polygraph examination in order to prove his innocence.
¶ 11 On 19 July 2016, Sergeant Jackson submitted the DNA sample that had been
obtained from defendant to the State Crime Laboratory for comparison with the DNA
samples that had been obtained from the rape kit that had been administered to the
victim. According to Mr. Baize, “the DNA profile obtained from the sperm fraction of
the cutting from the [victim’s underwear]” was “consistent with the DNA profile
obtained from [defendant],” with the probability that the DNA profile of an unrelated
and randomly selected individual would be consistent with the DNA profile that had
been obtained from the sperm fraction that had been found on the victim’s underwear
being “approximately 1 in 10.7 trillion in the Caucasian population, one in 63.0 billion
in the African-American population, and one in 312 billion in the Hispanic
population.”
B. Procedural History
¶ 12 On 17 January 2017, the Warren County grand jury returned bills of
indictment charging defendant with felonious breaking and entering, common law
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robbery, assault with a deadly weapon inflicting serious injury, first-degree sexual
offense, first-degree rape, and two counts of first-degree kidnapping. The grand jury
alleged with respect to one of the two counts of first-degree kidnapping that defendant
had “unlawfully confin[ed], restrain[ed,] and remov[ed] [the victim] from one place to
another without her consent” by “moving [the victim] from the kitchen to the back
bedroom” and alleged with respect to the second of the two counts of first-degree
kidnapping that defendant had “unlawfully confin[ed], restrain[ed,] and remov[ed]
[the victim] from one place to another without her consent” by “moving [the victim]
from the back bedroom to another bedroom and put[ting] her into a closet.” The grand
jury alleged that, in both instances, defendant had kidnapped the victim “for the
purpose of facilitating the commission of a felony, first[-]degree rape.”
¶ 13 The charges against defendant came on for trial before the trial court and a
jury at the 27 March 2019 criminal session of Superior Court, Warren County. At
the conclusion of the State’s evidence and after declining to present evidence in his
own defense, defendant unsuccessfully moved that the charges against him be
dismissed for insufficiency of the evidence. On 3 April 2019, the jury returned
verdicts convicting defendant of felonious breaking and entering, common law
robbery, assault inflicting serious injury, second-degree sexual offense, first-degree
rape, and two counts of first-degree kidnapping. After accepting the jury’s verdicts,
the trial court consolidated defendant’s convictions for felonious breaking or entering,
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second-degree sexual offense, common law robbery, and assault inflicting serious
injury for judgment and entered a judgment sentencing defendant to a term of 84 to
110 months imprisonment. In addition, the trial court consolidated defendant’s
convictions for first-degree rape and two counts of first-degree kidnapping and
entered a judgment sentencing defendant to a consecutive term of 240 to 297 months
imprisonment. Defendant noted an appeal to the Court of Appeals from the trial
court’s judgments.
C. Court of Appeals Decision
¶ 14 In seeking relief from the trial court’s judgments and related orders before the
Court of Appeals, defendant argued, among other things, that the trial court had
erred by denying his motions to dismiss the first-degree rape, first-degree
kidnapping, and common law robbery charges for insufficiency of the evidence. In
support of his contention that the trial court had erred by failing to dismiss the second
of the two first-degree kidnapping charges that had been lodged against him,
defendant argued that there was “no evidence [that] the second kidnapping was
committed for the purpose of facilitating rape.”
¶ 15 In rejecting defendant’s challenge to the sufficiency of the evidence to support
his convictions for first-degree rape, first-degree kidnapping, and common law
robbery, the Court of Appeals unanimously held that the record contained sufficient
evidence to support defendant’s rape and robbery convictions. State v. Elder, 278
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N.C. 493, 2021-NCCOA-350, ¶¶ 30, 42, 87. On the other hand, a majority of the Court
of Appeals concluded that the trial court had erred by denying defendant’s motion to
dismiss the second of the two first-degree kidnapping charges, holding that, while “an
indictment under [N.C.G.S.] § 14-39(a)(2) need not allege the exact type of felony
furthered by the restraint or confinement,” the State was required to provide that
“the felony that is the alleged purpose of the kidnapping must occur after the
kidnapping.” Id. ¶ 34 (quoting State v. Jordan 185 N.C. App. 576, 584 (2007), disc.
rev. denied, 362 N.C. 241 (2008)). In addition, the majority held that, even though
N.C.G.S. § 14-39(a)(2) allows a defendant to be convicted of first-degree kidnapping
“where the defendant committed the kidnapping either for the purpose of facilitating
the commission of a felony or for the purpose of facilitating flight of any person after
the commission of a felony, the State is obliged to prove the allegations made in the
indictment.” Id. ¶ 35 (emphasis in original) (citing State v. Morris, 147 N.C. App.
247, 251–53 (2001) (reversing a defendant’s first-degree kidnapping conviction in a
case in which the State had alleged that the defendant had kidnapped the victim for
the purpose of facilitating the commission of a rape where the evidence tended to
show that the defendant had kidnapped the victim for the purpose of facilitating his
flight after committing the rape), aff’d per curiam, 355 N.C. 488 (2002)). According
to the majority, “Morris controls the outcome here” given that, in this case, “the State
alleged that [d]efendant committed [the second count of first-degree kidnapping]
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when he moved [the victim] ‘from the back bedroom to another bedroom and put her
into a closet[,]’ which the parties agree occurred after [d]efendant committed first-
degree rape.” Id. ¶¶ 36–37 (fourth alteration in original). However, the majority
continued, “because ‘the felony that is the alleged purpose of the kidnapping must
occur after the kidnapping,’ we must reverse [d]efendant’s first-degree kidnapping
charge on [the second count.]” Id. (first alteration in original) (quoting Jordan, 186
N.C. App. at 584). As a result of the fact that both of defendant’s first-degree
kidnapping convictions had been consolidated for judgment with his first-degree rape
conviction, the Court of Appeals remanded that judgment to the trial court for
resentencing. Id. ¶ 38 (citing State v. Wortham, 318 N.C. 669, 674 (1987) (holding
that, because “it is probable that a defendant’s conviction for two or more offenses
influences adversely to him the trial court’s judgment on the length of that sentence
to be imposed when the offenses are consolidated for judgment,” “the better procedure
is to remand for resentencing when one or more but not all of the convictions
consolidated for judgment has been vacated”)).4
4 In addition, the majority held that the trial court had erroneously sentenced
defendant for both first-degree rape and the remaining charge of first-degree kidnapping.
Elder, ¶ 74. In reaching this conclusion, the majority determined that, since kidnapping “is
elevated from the second degree to the first when ‘the person kidnapped either was not
released by the defendant in a safe place or had been seriously injured or sexually
assaulted,’ ” id.¶ 75 (quoting N.C.G.S. § 14-39(b) (2007)), a defendant “may not be punished
for both the first-degree kidnapping and the underlying sexual assault,” id. (quoting State v.
Daniels, 189 N.C. App. 705, 709 (2008)). That is the case, the majority explained, because
“[N.C.G.S.] § 14-39, [which] defin[es] first-degree kidnapping, reflects the General Assembly’s
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¶ 16 In a separate opinion concurring with the majority’s decision, in part, and
dissenting from that decision, in part, Judge Tyson expressed disagreement with his
colleagues’ conclusion that the trial court had erred by failing to dismiss the second
of the two first-degree kidnapping charges. Id. ¶ 86 (Tyson, J., concurring, in part,
and dissenting, in part). In rejecting defendant’s contention that he could not have
moved the victim from one bedroom to another “for the purpose of facilitating the
commission of” first-degree rape when the rape was already over at that point, Judge
Tyson reasoned that “[t]he occurrence of all essential elements of a crime does not
mean the commission of a crime ceases.” Id. ¶ 88–89 (citing State v. Hall, 305 N.C.
77, 82–83 (1982) (holding that the fact that “the crime was ‘complete’ does not mean
it was completed”), overruled on other grounds by State v. Diaz, 317 N.C. 545 (1986)).
intent that ‘a defendant could not be convicted of both first-degree kidnapping and a sexual
assault that raised the kidnapping to first degree.’ ” Id. (quoting State v. Freeland, 316 N.C.
13, 23 (1986)). Given that the jury had convicted defendant of first-degree kidnapping
without specifying whether it found that defendant failed to release the victim in a safe place,
that the victim had been seriously injured, or that the victim had been sexually assaulted,
the majority concluded that it was “required to assume that the jury relied on defendant’s
commission of the sexual assault in finding him guilty of first-degree kidnapping.” Id. ¶ 76
(quoting Daniels, 189 N.C. App. at 710). As a result, the Court of Appeals held that, when it
resentenced defendant, “the trial court may 1) arrest judgment on the first-degree kidnapping
conviction and resentence defendant for second-degree kidnapping, or 2) arrest judgment on
the first-degree rape conviction and resentence defendant on the first-degree kidnapping
conviction.” Id. ¶ 77 (quoting Daniels, 189 N.C. App. at 710). Finally, a majority of the Court
of Appeals issued a writ of certiorari authorizing review of defendant’s challenge to the trial
court’s decision to enter a civil judgment against him in the amount of the attorney’s fees
that had been awarded to his court-appointed trial counsel and held that the trial court had
erred by entering that judgment without affording defendant with adequate notice and an
opportunity to be heard and remanded the issue to Superior Court, Watauga County, for
further proceedings. Id. ¶¶ 83–84.
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According to Judge Tyson, defendant’s actions in moving the victim to the second
bedroom “prevented [the victim] from seeking medical attention, contacting help, or
fleeing from [d]efendant”; “continued [the victim’s] pain, damage, and trauma from
the rape”; and “allowed [d]efendant a chance to shower, instead of needing to
immediately flee.” Id., ¶ 92. In addition, Judge Tyson contended that “[t]hese
additional restraints and asportation ‘ma[de] easier’ the commission of the rape by
allowing [d]efendant a chance to destroy evidence.” Id. (first alteration in original)
(quoting State v. Kyle, 333 N.C. 687, 694 (1993)). As a result, Judge Tyson would
have held that, when viewed in the light most favorable to the State, “the evidence
supports the conclusion that a purpose of the separate kidnapping was to facilitate
the rape and the jury could conclude that the kidnapping was part of an ongoing
criminal transaction.” Id. ¶ 93 (citing State v. Chevallier, 264 N.C. App. 204, 211
(2019)). The State noted an appeal to this Court based upon Judge Tyson’s dissent.5
5 Judge Tyson also disagreed with the majority’s determinations that defendant had
been improperly sentenced for both first-degree kidnapping and first-degree rape and that
the trial court had erred by entering a civil judgment against defendant in the amount of the
fees awarded to defendant’s court-appointed counsel. Elder, ¶¶ 100, 105 (Tyson, J.,
concurring, in part, and dissenting, in part). However, given that the State has not brought
either of these issues forward for consideration by this Court in its notice of appeal, they are
not before us and will not be discussed further in this opinion. See N.C. R. App. P. 14(b)(1)
(requiring that, “[i]n an appeal which is based upon the existence of a dissenting opinion in
the Court of Appeals, the notice of appeal . . . shall state the issue or issues which are the
basis of the dissenting opinion and which are to be presented to the Supreme Court for
review”).
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II. Analysis
A. Standard of Review
¶ 17 In evaluating the correctness of the trial court’s decision concerning a motion
to dismiss for insufficiency of the evidence, a reviewing court “need determine only
whether there is substantial evidence of each essential element of the crime and that
the defendant is the perpetrator,” with “substantial evidence” consisting of “that
amount of relevant evidence necessary to persuade a rational juror to accept a
conclusion.” State v. Winkler, 368 N.C. 572, 574 (2015) (quoting State v. Mann, 355
N.C. 294, 301 (2002)). In the course of making this inquiry, the reviewing court must
view the evidence “in the light most favorable to the State,” with the State being
“entitled to every reasonable intendment and every reasonable inference to be drawn
therefrom[.]” Id. (quoting State v. Powell, 299 N.C. 95, 99 (1980)). As long as the
record contains “substantial evidence, whether direct or circumstantial, or a
combination, to support a finding that the offense charged has been committed and
that the defendant committed it, the case is for the jury and the motion to dismiss
should be denied.” State v. Golder, 374 N.C. 238, 250 (2020) (cleaned up). “Whether
the State presented substantial evidence of each essential element of the offense is a
question of law,” so, accordingly, “we review the denial of a motion to dismiss de novo.”
State v. Chekanow, 370 N.C. 488, 492 (2018) (quoting State v. Crockett, 368 N.C. 717,
720 (2016)).
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B. Summary of Relevant Caselaw
¶ 18 The divergent results reached by the members of the panel at the Court of
Appeals ultimately rest upon a disagreement about which of our precedents controls
the outcome in this case. As a result, we will begin our analysis by reviewing the
relevant precedent.
1. State v. Faircloth
¶ 19 In State v. Faircloth, the grand jury charged the defendant with felonious
larceny of an automobile, kidnapping, armed robbery, and first-degree rape, having
alleged, among other things, that the defendant “did feloniously kidnap [the victim]
. . . by unlawfully removing her from one place to another [f]or the purpose of
facilitating flight following the commission of the felony of rape.” 297 N.C. 100, 104,
107 (1979). The evidence presented at trial, however, tended to show that the
defendant had forced his way into the victim’s vehicle, drove that vehicle to a secluded
location, and then raped the victim. Id. at 102–03. After the jury convicted him of
kidnapping, robbery, and rape,6 the defendant asserted on appeal that “there was no
evidence presented in the case at hand tending to show that he confined, restrained,
or removed [the victim] from one place to another for the purpose of ‘facilitating flight
following the commission of the felony of rape,’ ” resulting in a “a fatal variance
6At the close of evidence, the trial court dismissed the felonious automobile larceny
charge. Faircloth, 297 N.C. at 104.
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between the indictment and proof.” Id. at 107 (emphasis added). In agreeing that
the defendant’s contention had merit, this Court observed that, while the defendant’s
conviction could have been upheld had he “been tried on an indictment alleging that
he restrained or removed [the victim] from one place to another for the purpose of
facilitating the commission of the felony of rape,” “the evidence does not support the
charge as laid in the indictment.” Id. at 108 (emphasis added).
2. State v. Hall
¶ 20 In Hall, which this Court decided less than three years after it decided
Faircloth, the defendant and an accomplice robbed a service station attendant at
gunpoint, forced the victim into their car, and drove away in order to prevent the
victim from calling for assistance. Hall, 305 N.C. at 79–80. After driving
approximately five miles, the defendant stopped the car and, as the victim was
leaving the vehicle, one of the men shot him in the back. Id. at 80. The defendant
was subsequently charged with robbery with a dangerous weapon, first-degree
kidnapping, and felonious assault, with the kidnapping charge resting upon the
“asportation of the victim to facilitate the commission of the felony of armed robbery.”
Id. at 79, 82.
¶ 21 In the course of challenging his kidnapping conviction on appeal, the defendant
argued that, “since the evidence show[ed] the crime of armed robbery was complete
at the time the victim was taken from the service station to” the point at which he
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was let out of the car, “the kidnapping was for the purpose of facilitating flight, not
for the purpose of facilitating armed robbery,” meaning that there was a fatal
variance between the indictment and the evidence presented at trial. Id. at 82. In
rejecting the defendant’s argument, this Court held that “[t]he purposes specified in
[N.C.G.S. §] 14-39(a) are not mutually exclusive,” so that “[a] single kidnapping may
be for the dual purposes of using the victim as a hostage or shield and for facilitating
flight, or for the purposes of facilitating the commission of a felony and doing serious
bodily harm to the victim.” Id. Based upon that logic, the Court held that, “[s]o long
as the evidence proves the purpose charged in the indictment, the fact that it also
shows the kidnapping was effectuated for another purpose enumerated in [N.C.G.S.
§] 14-39(a) is immaterial and may be disregarded.” Id. The Court concluded that the
record contained sufficient evidence to show that the defendant had kidnapped the
victim “for the purpose of facilitating the armed robbery and also for the purpose of
facilitating flight” and, therefore, “the evidence proved the crime charged in the
indictment.” Id. (emphasis in original). As a result, we held that, “[a]lthough [the]
defendant contends that the crime was ‘complete’ when [his accomplice] pointed his
pistol at [the victim] and attempted to take property by this display of force, the fact
that all essential elements of a crime [have] arisen does not mean the crime is no
longer being committed,” with this Court opining that the fact that the “the crime
was ‘complete’ does not mean it was completed.’ ” Id. (citing State v. Squire, 292 N.C.
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494 (1977)). Justice Britt, who had authored the Court’s opinion in Faircloth,
dissented from his colleagues’ decision in Hall on the grounds that he was “unable to
reconcile the holding of the majority in this case with our decision in [Faircloth].” 305
N.C. at 91 (Britt, J., joined by Branch, C.J., and Exum, J., dissenting, in part).
3. State v. Diaz
¶ 22 Four years later, we decided Diaz, in which the defendant had been charged
with trafficking in marijuana on an acting in concert theory. 317 N.C. at 546. At
that time, the relevant statute provided that “anyone who s[old], manufacture[d],
deliver[ed], transport[ed], or possesse[d] more than 50 pounds of marijuana” was
guilty of a felony. Id. at 547 (emphasis added) (citing N.C.G.S. § 90-95(h)(1) (1985)).
At the defendant’s trial, the trial court instructed the jury that it could convict
defendant if it found that he, acting together with the other defendants, “knowingly
possessed or knowingly transported marijuana[.]” Id. at 553 (emphasis added). On
appeal, the defendant argued that the trial court had erred by denying his motion to
set aside the jury’s guilty verdict because “the verdict was ambiguous and lacked the
unanimity required” by N.C.G.S. § 15A-1237 and Article I, Section 24 of the North
Carolina Constitution. Id.
¶ 23 This Court agreed, holding that “a verdict of guilty following submission in the
disjunctive of two or more possible crimes to the jury in a single issue is ambiguous
and therefore fatally defective.” Id. (citing State v. McLamb, 313 N.C. 572, 577 (1985);
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State v. Albarty, 238 N.C. 130, 133 (1953)). According to the Court, the “[s]ale,
manufacture, delivery, transportation, and possession of 50 pounds or more of
marijuana are separate trafficking offenses for which a defendant may be separately
convicted and punished,” so that, “[b]y instructing the jury that it could find [the]
defendant guilty of trafficking in marijuana if it found that [the] defendant knowingly
possessed or knowingly transported 10,000 pounds or more of marijuana[,] the trial
judge submitted two possible crimes to the jury,” with it being impossible to know
whether the jury had unanimously found that the defendant knowingly possessed the
marijuana, unanimously found that the defendant had knowingly transported the
marijuana, or that some jurors had found that the defendant had knowingly
possessed the marijuana while other jurors had found that the defendant had
knowingly transported it. Id. at 554 (emphasis added). As a result, the Court
concluded that the trial court’s instruction deprived the defendant of his
constitutional right not to be convicted of a crime except on the basis of a unanimous
jury verdict. Id.
¶ 24 The Court cautioned, however, that its decision in Diaz “[did] not mean that a
simple verdict of guilty based on an indictment and instruction charging crimes in
the disjunctive will always be fatally ambiguous.” Id. Instead, the Court stated that
a reviewing court must examine “the verdict, the charge, the initial instructions by
the trial judge to the jury[,] . . . and the evidence in a case [that] may remove any
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ambiguity created by the charge.” Id. After acknowledging that Hall had “reached
results at variance with this opinion,” the Court stated that, “[i]nsofar as [Hall] and
other opinions of this Court contain language inconsistent with the holding of this
case they are overruled.” Id. at 555.7
4. State v. Kyle
¶ 25 In Kyle, the defendant, who was armed with a pistol, broke into a mobile home
in which his estranged wife and stepson were living. 333 N.C. at 692. After
exchanging words with his wife and stepson, the defendant shot his wife in the chest,
dragged her outside to her automobile, placed her in the front seat, and ordered his
stepson to enter the back seat. Id. According to the stepson, the defendant’s wife was
7 The parties disagree concerning the extent to which the Court’s decision in Diaz to
overrule Hall encompassed the portions of the Hall opinion that are relevant to the present
case. The State, on the one hand, contends that Diaz only overruled Hall with respect to the
jury unanimity issue that was explicitly addressed in Hall, a question that did not include
the kidnapping charge, while defendant argues that, in light of Diaz, “it would be reversible
error to allow [defendant’s] conviction on the second count of first-degree kidnapping to stand
when the jury may have convicted [defendant] of the second first-degree kidnapping charge
for some other purpose than that alleged in the indictment.” Our subsequent decisions make
clear that the State has the better of this disagreement. See Kyle, 333 N.C. at 695 (relying
on Hall in rejecting the defendant’s argument that the kidnapping of the defendant’s wife
and stepson could not have facilitated the crime of burglary because the burglary was
complete upon his entry into the house and noting that Diaz had overruled Hall “on other
grounds”); State v. Bell, 351 N.C. 1, 30 (2004) (concluding that, to secure a kidnapping
conviction under N.C.G.S. § 14-39(a), “[i]t is not necessary for the State to prove, nor for the
jury to find, that a defendant committed a particular act other than that of confining,
restraining, or removing the victim” and that, even if the trial court had instructed the jury
disjunctively with respect to the various purposes which allegedly motivated the defendant’s
actions, the requirement that the jury’s verdict be unanimous was not violated despite the
possibility that individual jurors might have relied upon different purposes in determining
that the defendant should be convicted) (citing State v. Hartness, 326 N.C. 561 (1990)).
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still alive at that time and calling the defendant’s name. Id. After driving some
distance, the defendant pulled the automobile to the side of the road, shot his wife in
the side of the head to “shut [her] up,” and, after driving several more miles, pulled
over again and dumped her body in a ditch. Id. at 692–93. A grand jury returned
bills of indictment charging the defendant with the first-degree murder and first-
degree kidnapping of his wife, first-degree kidnapping of his stepson, and first-degree
burglary, alleging in the kidnapping indictment that the defendant had “confined,
restrained and removed [his wife] ‘for the purpose of facilitating the commission of
the felonies of murder and burglary, and facilitating the flight of [the defendant]
following his participation in the commission of the felonies.’ ” Id. at 691, 693.
¶ 26 On appeal from a judgment based upon defendant’s conviction as charged, the
defendant argued before this Court that the State had presented insufficient evidence
“to establish that he restrained or removed [his wife] for either the purpose of
burglarizing her home or for the purpose of murdering her.” Id. at 694. In upholding
defendant’s kidnapping conviction, this Court began by noting that “[t]he word
facilitate has been defined as ‘to make easier.’ ” Id. (quoting Webster’s Ninth New
Collegiate Dictionary 444 (1988)). The Court then reasoned that “[r]estraining [his
wife] and [stepson] in [his wife’s] apartment . . . made the crime of burglary easier by
enabling [the] defendant to carry out his felonious intent” of killing her and that, had
the defendant “not restrained the victim and had instead allowed her to flee from his
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presence, he may not have completed his intent to kill her.” Id. at 695. For that
reason, the Court, in reliance upon Hall, rejected the defendant’s argument that “the
burglary was complete upon entry into the house and that the kidnapping could not
facilitate this crime.” Id. Similarly, we noted with respect to the first-degree murder
charge that, “after shooting [his wife] in her [home], [the] defendant dragged her and
[his stepson] to her car while she was still living” and that, after driving several miles,
defendant shot her in the head, evidence that “support[ed] a reasonable inference
that [the] defendant removed the victim from her apartment for the purpose of
facilitating the commission of murder.” Id. at 696. As a result, the Court affirmed
the defendant’s first-degree kidnapping conviction. Id.
5. State v. Morris
¶ 27 In Morris, the defendant, who was a high school student, invited one of his
female classmates to visit him at his apartment, called her upstairs, and “began to
rub her shoulders and breasts.” 147 N.C. App. at 248. When the victim attempted
to leave, the defendant “pushed her away from the door” and “punched her in the
face,” causing her to black out. Id. Upon regaining consciousness, the victim
discovered that the defendant was on top of her and that she was not wearing shorts
or underwear. Id. at 248–49. After she began screaming, hitting, and scratching at
the defendant in order to get him to stop what he was doing, the defendant hit the
victim in the face, causing her to lose consciousness for a second time. Id. at 249. The
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victim woke up the next morning in a storage closet outside the apartment, wearing
only a tank top and feeling sore all over her body. Id. After a grand jury charged the
defendant with second-degree rape and second-degree kidnapping, the jury convicted
him of both offenses. Id. at 248.
¶ 28 On appeal, a majority of the Court of Appeals held that there was a fatal
variance between the allegations of the indictment and the evidence, stating that
[t]he indictment for second degree kidnapping stated [that
the] defendant kidnapped the victim “for the purpose of
facilitating the commission of a felony.” The indictment
made no mention of facilitating defendant’s flight following
the commission of a felony. At trial, the State again
asserted only that the kidnapping facilitated the felony of
second degree rape.
....
In the case before us, the evidence presented shows the
victim was confined in the apartment living room, she was
knocked unconscious, she awoke once to find [the]
defendant on top of her and her clothes removed, she was
knocked unconscious again, and when she awoke a second
time, she was locked in the storage closet outside. The
evidence presented could possibly show [the] defendant
kidnapped the victim for the purpose of facilitating the
flight from the commission of a felony; however, this crime
was not charged. There is no evidence [that the] defendant
removed the victim to the storage closet for the purpose of
raping her there. All of the physical evidence of a rape was
found inside the apartment. While there was testimony
that the victim kicked her way out of the storage closet,
there was no evidence of a struggle or a rape inside the
storage closet.
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Id. at 250–51. In addition, the majority at the Court of Appeals rejected the State’s
invocation of the continuous transaction doctrine on the grounds that “our Courts
have not applied the continuous transaction doctrine to instances involving rape and
kidnapping like the situation we have before us” and that, “[w]hile these two acts
occurred close in time, they were not inseparable or concurrent actions,” with “[a]ll of
the elements of the rape [having been] completed before defendant removed the
victim to the storage closet.” Id. at 252.
¶ 29 Finally, the Court of Appeals disagreed with the State’s argument that Kyle
was controlling, reasoning that, “[w]hile there is little question that [the] defendant’s
actions made his flight from the scene easier and was an attempt to cover up his act,
the removal of the victim to the storage closet in no way made defendant’s rape of her
easier, as all the elements of rape were completed before the removal.” Id. at 252–
53. As a result, the Court of Appeals reversed the defendant’s second-degree
kidnapping conviction over a dissent. Although Judge Walker dissented on the
grounds that he was “unable to reconcile the facts of this case” with those in Hall, id.
at 253 (Walker, J., dissenting), this Court affirmed the Court of Appeals decision by
means of a per curiam opinion, State v. Morris, 355 N.C. 488 (2002).
C. Second-Degree Kidnapping
¶ 30 In the present appeal, the State asserts that, by relying upon Morris and
Jordan, the Court of Appeals’ decision in this case conflicts with this Court’s decision
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in Hall. According to the State, “it is not clear that the sexual assaults on [the victim]
had ended” at the time that defendant had moved her to the second bedroom and
that, “even if they were, Hall argues that the crime still is not necessarily over.”
Arguing consistently with the reasoning that Judge Tyson adopted in his dissent, the
State contends that “[d]efendant’s actions after the second kidnapping ‘continued [the
victim’s] pain, damage, and trauma from the rape’ ” and that defendant’s actions in
restraining the victim “allowed [d]efendant a chance to potentially destroy evidence
by showering [and] escaping, and prolonged the victim’s pain, injuries, and trauma,”
quoting Elder, ¶ 92 (Tyson, J. concurring, in part, and dissenting, in part). In
addition, the State contends that, “[i]f the second kidnapping . . . in any way ‘made
easier’ the commission of the rape, as the jury found, then [d]efendant facilitated the
commission of the rape,” citing Kyle, 333 N.C. at 693. As a result, the State asserts
that, when the evidence is viewed in the light most favorable to the State, it
“support[s] a reasonable inference that [defendant] moved [the victim] into the closet
to facilitate the commission of her rape.”
¶ 31 In the State’s view, both Jordan and Morris are distinguishable from this case
in ways that the Court of Appeals failed to appreciate. As an initial matter, the State
argues that the defendant in Jordan had been charged with burglary, which is
“complete once the defendant enters a house,” whereas “the end of the commission of
[a rape] is far more amorphous and difficult to define.” The State also contends that,
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even if this Court finds that distinction to be unpersuasive, Jordan was incorrectly
decided in light of Hall and Kyle. In support of this assertion, the State points to the
fact that “the trial court instructed the jury that the confinement, restraint, or
removal of the victim had to be for ‘the purpose of facilitating [defendant’s]
commission of committing first-degree rape,’ ” with the fact that the jury found that
this element of the relevant crime existed beyond a reasonable doubt providing
further indication that, “in [the] light most favorable to the State, the trial court’s
decision to deny [d]efendant’s motion to dismiss this [count of first-degree
kidnapping] was correct.” According to the State, “the second kidnapping helped
facilitate the commission of rape because it prevented the victim from fleeing or
getting help” and that the existence of “other grounds or theories the State could have
used in indicting and convicting [defendant] is irrelevant” because “the second
kidnapping could satisfy a theory in which the crime was done to facilitate a felony,
and in which the crime was done to facilitate flight.”
¶ 32 Furthermore, the State argues that the majority at the Court of Appeals erred
by relying upon Morris even though the Court of Appeals’ decision in that case had
been affirmed per curiam by this Court, insisting that “the Court of Appeals
myopically found [that] ‘there is no evidence defendant removed the victim for the
purpose of raping her there,’ ” quoting Morris, 147 N.C. App. at 251. In the State’s
view, this conclusion was “short-sighted” because the “jurors could, as they did in
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Morris and in this matter, find that the facts supported that a second kidnapping
facilitated the commission of a rape” by allowing the defendant to “destroy evidence
by showering, prolong the victim’s pain and suffering, and evade capture by
committing the second kidnapping.”
¶ 33 In seeking to persuade us that the Court of Appeals’ decision to overturn the
second of defendant’s first-degree kidnapping convictions on fatal variance grounds
should be upheld, defendant begins by noting that “[a] valid kidnapping indictment
must allege [that] the defendant unlawfully confined, restrained, or removed a
person, for one of the [ten] specific purposes set out in N.C.G.S. § 14-39” and that “the
State is restricted at trial to proving the purpose(s) alleged in the indictment.”
According to defendant, “the State had the burden of proving not only that [he]
kidnapped [the victim] by moving her from her back bedroom to the front bedroom
closet, but [also] that [he] did so with the specific intent to facilitate his commission
of a felony, to wit: first degree rape; as alleged in the State’s indictment.” In light of
the State’s failure to make the required evidentiary showing, defendant contends that
the majority at the Court of Appeals properly concluded that Morris dictated a
decision in his favor in this case.
¶ 34 We hold that the evidence adduced at trial does not support the second of the
two counts of first-degree kidnapping alleged in the indictment and that the majority
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did not err in reaching this conclusion. According to the relevant statutory provision,
a defendant is guilty of kidnapping if he or she
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 . . . if such confinement,
restraint or removal is for the purpose of:
(1) Holding such other person for a ransom or as a
hostage or using such other person as a shield; or
(2) Facilitating the commission of any felony or
facilitating flight of any person following the
commission of a felony; or
(3) Doing serious bodily harm to or terrorizing the
person so confined, restrained or removed or any
other person; or
(4) Holding such other person in involuntary servitude
in violation of [N.C.G.S. §] 14-43.12.
(5) Trafficking another person with the intent that the
other person be held in involuntary servitude or
sexual servitude in violation of [N.C.G.S. §] 14-
43.11.
(6) Subjecting or maintaining such other person for
sexual servitude in violation of [N.C.G.S. §] 14-
43.13.
N.C.G.S. § 14-39(a) (2021) (emphasis added). A kidnapping is elevated from second-
degree kidnapping to first-degree kidnapping in the event that “the person kidnapped
either was not released by the defendant in a safe place or had been seriously injured
or sexually assaulted.” N.C.G.S. § 14-39(b).
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¶ 35 According to well-established North Carolina law, since “kidnapping is a
specific intent crime, the State must prove that the defendant unlawfully confined,
restrained, or removed the person for one of the [ten] purposes set out in the statute.”
State v. Moore, 315 N.C. 738, 743 (1986);8 accord State v. China, 370 N.C. 627, 633
(2018); State v. Prevatte, 356 N.C. 178, 252 (2002). As a result, an indictment
charging a defendant with kidnapping “must allege the purpose or purposes [for the
kidnapping] upon which the State intends to rely, and the State is restricted at trial
to proving the purposes alleged in the indictment.” Moore, 315 N.C. at 743; see also
Faircloth, 297 N.C. at 107 (observing that it “has long been the law of this state that
a defendant must be convicted, if convicted at all, of the particular offense charged in
the warrant or bill of indictment”). Although the indictment “may allege more than
one purpose for the kidnapping, the State has to prove only one of the alleged
purposes in order to sustain a kidnapping conviction. Moore, 315 N.C. at 743.
¶ 36 The indictment returned against defendant in this case for the purpose of
charging him with kidnapping alleged that he
kidnap[ped] [the victim], a person who had attained and
[sic] the age of 16 years, by unlawfully confining,
restraining[,] and removing her from one place to another
without her consent and for the purpose of facilitating the
8 The General Assembly amended N.C.G.S. § 14-39 in 2006 to add human trafficking
and sexual servitude to the list of purposes for which a person could “unlawfully confine,
restrain, or remove” another person so as to be guilty of kidnapping. See Act to Protect North
Carolina’s Children/Sex Offender Law Changes, S.L. 2006-247, § 20(c), 2006 N.C. Sess. Laws
1065, 1084.
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commission of a felony, first degree rape, by moving [the
victim] from the back bedroom to another bedroom and
put[ting] her into a closet. [The victim] was not released
by the defendant and she was forcibly confined to a closet
until she freed herself sometime after the defendant left.
(emphasis added.) As a result of the manner in which the kidnapping indictment was
written, the State was obligated to prove beyond a reasonable doubt that defendant
had moved the victim to the closet in the second bedroom for the purpose of facilitating
the commission of rape. See Moore, 315 N.C. at 743; see also Morris, 147 N.C. App. at
253. A careful review of the record reveals, however, that all of the evidence
presented at trial, even when taken in the light most favorable to the State, tended
to show that defendant did not move the victim “from the back bedroom to another
bedroom and put her into a closet” until after he had raped her, with nothing that
defendant did during that process having made it any easier to have committed the
actual rape.9 As a result, the record does not support the allegation that defendant
moved the victim to the closet in the second bedroom for the purpose of facilitating
the commission of rape. See Jordan, 186 N.C. App. at 584 (holding that, where an
indictment alleges that the defendant kidnapped a victim for the purpose of
facilitating the commission of a felony, “the felony that is the alleged purpose of the
9N.C.G.S. § 14-27.21(a) provides, in pertinent part, that a defendant “is guilty of first-
degree forcible rape if the person engages in vaginal intercourse with another person by force
and against the will of the other person” and “[i]nflicts serious personal injury upon the victim
or another person.”
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kidnapping must occur after the kidnapping”); see also State v. Brooks, 138 N.C. App.
185, 192 (2000) (holding that, in order for the State to prove that the defendant
kidnapped the victim for the purpose of facilitating the commission of assault with a
deadly weapon inflicting serious injury, “the evidence at trial must have shown that
[the] defendant kidnapped [the victim] before he shot her”).
¶ 37 The evidence elicited at trial would, of course, support a jury finding that
defendant moved the victim to the closet in the second bedroom for the purpose of
facilitating his flight following the commission of the rape. For example, the evidence
tending to show that defendant locked the victim in the bedroom closet and took a
shower could support a jury finding that the defendant facilitated his escape from
raping the victim by destroying any biological evidence of the crime that might have
been present on his body and leaving the scene before the victim had had an
opportunity to call for help. See Morris, 147 N.C. App. at 252–53 (noting that “there
is little question” that the defendant’s actions in moving the victim from the bedroom
in which he had raped her to a storage closet outside the apartment “made his flight
from the scene easier and was an attempt to cover up his act”). However, the grand
jury simply did not allege that defendant moved the victim from one bedroom to
another for the purpose of facilitating his flight following the commission of a felony.
Cf. Faircloth, 297 N.C. at 108 (holding that, had the indictment alleged that the
defendant had “restrained or removed the victim from one place to another for the
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purpose of facilitating the commission of the felony of rape, the conviction could be
upheld,” and that, because the evidence contained in the record tended to show that
the kidnapping took place before the rape, the record did not support the allegation
contained in the indictment that the defendant had kidnapped the victim for the
purpose of facilitating his flight from the commission of a felony).
¶ 38 The facts at issue in this case are virtually indistinguishable from those at
issue in Morris. In this case, defendant moved the victim to the closet in the second
bedroom after having raped her, just as the defendant in Morris moved his victim
into a storage closet outside the apartment after he had raped her, with “[t]here
[being] no evidence defendant removed [the victim] to the [closet in the second
bedroom] for the purpose of raping her there.” Morris, 147 N.C. App. at 251.
Similarly, as in Morris, the indictment “[makes] no mention of facilitating defendant’s
flight following the commission of a felony.” Id. at 250. In addition, the Court of
Appeals in Morris rejected an argument that had been advanced by the State in that
case, in reliance upon Kyle, that is very similar to an argument that the State has
advanced in this case.
The State also relies on State v. Kyle in arguing that “to
facilitate” means “to make easier.” Therefore, any act
which makes the commission of the felony easier will
support a conviction of facilitating the felony. In Kyle, the
kidnapping made the eventual murder easier because it
prevented the victim from escaping. While we agree with
this theory of the State’s argument and its definition of “to
facilitate,” the facts in the case before us do not support this
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theory. While there is little question defendant’s actions
made his flight from the scene easier and was an attempt
to cover up his act, the removal of the victim to the storage
closet in no way made defendant’s rape of her easier, as all
the elements of rape were completed before the removal.
Again, defendant’s actions possibly would support a
conviction of second degree kidnapping for the purpose of
facilitating his flight from the commission of a rape;
however, the State has failed to carry its burden in proving
defendant’s actions facilitated defendant’s commission of
the actual rape.
Id. at 252–53 (citation omitted). In the same vein, by placing the victim in the closet
in the second bedroom and apparently taking a shower, defendant may have
facilitated his escape from or covered up evidence of the commission of the rape.
However, we are unable to see how any of these actions made it any easier for
defendant to rape the victim.
¶ 39 Apart from contending that the Court of Appeals took a “short-sighted” view
in Morris, the State has made no attempt to persuade us that it is not controlling in
this case, despite the fact that this Court has long held that “[p]er curiam decisions
stand upon the same footing as those in which fuller citations of authorities are made
and more extended opinions are written.” Bigham v. Foor, 201 N.C. 548, 549 (1931);
accord Tinajero v. Balfour Beatty Infrastructure, Inc., 233 N.C. App. 748, 761 (2014);
Total Renal Care of N.C. v. N.C. Dep’t of Health & Hum. Servs., 195 N.C. App. 378,
386 (2009); see also Mote v. White Lake Lumber Co., 192 N.C. 460, 465 (1926)
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(observing that a per curiam opinion “carries all the force of a formal utterance”).10
In addition, Judge Tyson totally failed to make any mention of Morris in his
dissenting opinion. See Elder, ¶¶ 88–94 (Tyson, J., concurring, in part, and
dissenting, in part). Instead, both the State and Judge Tyson simply contend that
the outcome in this case is controlled by Hall. We do not find this argument to be
persuasive.
¶ 40 As an initial matter, N.C.G.S. § 14-39(a) delineates ten specific purposes for
which a defendant might “unlawfully confine, restrain, or remove” a victim in order
to be guilty of kidnapping, with the indictment being required to allege that the
defendant acted to effectuate one of these purposes and with the State being required
to elicit substantial evidence to that effect in order to obtain the defendant’s
conviction for kidnapping. See Moore, 315 N.C. at 743 (noting that “[t]he 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”). As we have already noted, the indictment returned against
10The dissenting judge in Morris argued, as Judge Tyson has done in this case, that
the majority’s decision was inconsistent with Hall. Morris, 147 N.C. App. at 253–54 (2001)
(Walker, J., dissenting). For that reason, the issue before this Court in Morris was identical
to the one that is before us now. See State v. Alexander, 380 N.C. 572, 2022-NCSC-26, ¶ 26
(noting that, “when an appeal is taken pursuant to N.C.G.S. § 7A-30(2), the only issues
properly before the Court are those on which the dissenting judge in the Court of Appeals
based his dissent” (cleaned up)); N.C. R. App. P. 14(b)(1). Our decision to affirm the Court of
Appeals’ decision in Morris per curiam means that we effectively rejected the State’s
contention that a fact pattern like the one at issue here was controlled by Hall. In other
words, one can have either Hall or Morris, but not both.
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defendant in this case alleged that defendant kidnapped the victim by “unlawfully
confining, restraining[,] and removing her from one place to another without her
consent and for the purpose of facilitating the commission of a felony, first degree
rape,” which means that the State was required to prove that defendant moved the
victim to the bedroom closet for the purpose of facilitating the commission of a rape.
(emphasis added.) For the reasons that we have already provided, the record simply
does not support a determination that the movement of the victim from one bedroom
to the other did anything to make any easier the commission of the rape, which had
already occurred prior to the point in time at which the victim was moved to the closet
in the second bedroom. Aside from the fact that an identical argument was rejected
in Morris, the State has not cited any authority in support of its contention that,
unlike a burglary, which is “complete once the defendant enters a house,” “the end of
the commission of [rape] is far more amorphous and difficult to define.”11 On the
contrary, we have clearly held that, “generally rape is not a continuous offense, but
each act of intercourse constitutes a distinct and separate offense.” State v. Dudley,
319 N.C. 656, 659 (1987) (cleaned up); accord State v. Carter, 198 N.C. App. 297, 305
(2009); State v. Sapp, 190 N.C. App. 698, 704 (2008).
11The State apparently overlooks the fact that this Court in Kyle specifically rejected
the defendant’s argument that “the burglary was complete upon entry into the house and
that the kidnapping could not facilitate this crime.” 333 N.C. at 695.
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¶ 41 In addition, the State’s argument in reliance upon Hall simply cannot be
squared with the sequence of events that transpired in this case. Although
defendant’s decision to move the victim to the closet in the second bedroom might
have facilitated his ability to escape following the commission of the rape, we are
completely unable to see how those actions facilitated the commission of the rape
itself, which had already happened by that point. For the same reason, we have
difficulty seeing how the defendant’s decision to kidnap the victim in Hall after
having already robbed him served to facilitate the commission of the robbery rather
than facilitating the defendant’s flight following the robbery, particularly given our
observation that the defendant kidnapped the victim “so [the victim] couldn’t get to a
telephone for a while,” Hall, 305 N.C. at 80. Indeed, the Court in Hall did not provide
any explanation for how the asportation of the victim helped make the commission of
the robbery any easier other than making the conclusory assertion that “[the
defendant] kidnapped [the victim] for the purpose of facilitating the armed robbery
and also for the purpose of facilitating flight” and the otherwise unsupported
contention that “the fact that all essential elements of a crime have arisen does not
mean that the crime is no longer being committed” and that the fact that “the crime
was ‘complete’ does not mean it was completed.” 305 N.C. at 82–83.
¶ 42 The only authority that this Court cited in support of the last of these
propositions was State v. Squire, a case in which three defendants were charged with
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having murdered a state trooper while fleeing from the commission of an armed
robbery. 292 N.C. at 500–01. This Court upheld the defendants’ convictions for first-
degree murder on the basis of the felony murder rule despite the defendants’
argument that the robbery had been completed before one of them fatally shot the
trooper on the grounds that, “[f]or the purposes of this rule, the underlying felony is
not deemed terminated prior to the killing merely because the participants have then
proceeded far enough with their activities to permit their conviction of the underlying
felony.” Id. at 511. This holding from Squire would come to be known as the
“continuous transaction doctrine,” pursuant to which “[a] killing is committed in the
perpetration or attempted perpetration of another felony when there is no break in
the chain of events between the felony and the act causing death, so that the felony
and homicide are part of the same series of events, forming one continuous
transaction.” State v. Wooten, 295 N.C. 378, 385–86 (1978). We have applied the
continuous transaction doctrine in cases in which the defendant has committed
murder and, within the same time frame, also committed another crime such as
arson, see State v. Campbell, 332 N.C. 116, 120 (1992); armed robbery, see State v.
Olson, 330 N.C. 557, 566 (1992); sexual offense, see State v. Thomas, 329 N.C. 423,
434 (1991); rape, see State v. Trull, 349 N.C. 428, 449 (1998); and kidnapping, see
State v. Mann, 355 N.C. 294, 305 (2002). In addition, this Court has held that
evidence is sufficient to convert what would otherwise be a second-degree sexual
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offense into a first-degree sexual offense in the event that it shows “a series of
incidents forming a continuous transaction between [the] defendant’s wielding [of a
dangerous or deadly weapon] and the sexual assault” even if the defendant was not
holding the weapon at the exact moment that the sexual act was committed, State v.
Whittington, 318 N.C. 114, 119–20 (1986), and that a conviction for robbery with a
dangerous weapon can be upheld when “the defendant’s use or threatened use of a
dangerous weapon . . . precede[s] or [is] concomitant with the taking, or [is] so joined
with it in a continuous transaction by time and circumstance as to be inseparable,”
State v. Hope, 317 N.C. 302, 306 (1986).
¶ 43 On the other hand, as the Court of Appeals recognized in Morris, we have not
applied the continuous transaction doctrine to circumstances like those presented in
that case and the one that is presently before us, see Morris, 147 N.C. App. at 252,
and are not persuaded that we should do so in circumstances involving similar facts.
Although defendant’s actions in raping the victim and moving her to the closet in the
second bedroom “occurred close in time, they were not inseparable or concurrent
actions” given that “[a]ll of the elements of the rape were completed before defendant
removed the victim to the [second bedroom] closet.” Id.; see also Dudley, 319 N.C. at
659. In addition, unlike the vast majority of the cases in which the continuous
transaction doctrine has been applied, this case does not involve the commission of a
homicide. See Wooten, 295 N.C. at 385–86. Thus, we hold that the continuous
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Opinion of the Court
transaction doctrine does not justify a decision to uphold the second of defendant’s
first-degree kidnapping convictions in this case.
¶ 44 In light of this logic, we conclude that the Court’s statement in Hall that the
fact that “the crime was ‘complete’ does not mean it was completed” sweeps too
broadly, particularly given that the only support provided for that proposition stems
from the application of the felony murder rule. See Squire, 292 N.C. at 511 (holding
that, “[f]or the purposes of this rule, the underlying felony is not deemed terminated
prior to the killing merely because the participants have then proceeded far enough
with their activities to permit their conviction of the underlying felony” (emphasis
added)). In addition, we are concerned that the Court in Hall failed to articulate any
kind of limiting principle that can be used to identify the point at which the
commission of a crime has been “completed.”12 If the point at which a crime has been
committed is not, as the Court in Hall seemed to suggest it was not, the point at which
all of the essential elements of the crime could be found beyond a reasonable doubt,
there does not appear to be any meaningful limitation upon the extent to which acts
committed by the defendant following the technical completion of a crime would
12 As a matter of basic grammar, we cannot discern any difference between a
“complete” crime and a crime that has been “completed” in light of the fact that “complete”
and “completed” are simply two different forms of the same word. See New Oxford American
Dictionary 355 (3d ed. 2010) (defining “complete” as an adjective meaning “having run its full
course; finished: the restoration of the chapel is complete,” and defining “completed” as a
transitive verb meaning “finished making or doing: he completed his Ph.D. in 1983”);
Merriam-Webster’s Collegiate Dictionary 254 (11th ed. 2007) (defining both “complete” and
“completed” as transitive verbs meaning “to bring to an end” or “to mark the end of”).
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Opinion of the Court
suffice to support a finding of facilitation of the commission of a rape for purposes of
the kidnapping statute. See State v. Dew, 379 N.C. 64, 2021-NCSC-124, ¶ 29
(observing that, although “the concept of an assault can be broader than each
individual harmful contact, . . . allowing for a separate charge for each non-
simultaneous contact would erase any limiting principle and allow the State to charge
a defendant for every punch in a fight”). For that reason, we are not persuaded that
the statement from Hall upon which the State relies in this case provides adequate
support for the trial court’s decision to allow defendant to be convicted of kidnapping
on the grounds that his conduct facilitated the commission of the rape of the victim.
¶ 45 Finally, we conclude that the State’s position, and the holding in Hall upon
which it rests, cannot be squared with the manner in which the kidnapping statute
is written. According to the relevant statutory language, a defendant is guilty of
kidnapping if he or she unlawfully confines, restrains, or removes the victim from one
place to another “for the purpose of . . . [f]acilitating the commission of any felony or
facilitating flight of any person following the commission of a felony.” N.C.G.S. § 14-
39(a)(2) (emphasis added). The use of the disjunctive “or” in N.C.G.S. § 14-39(a)(2)
plainly indicates that the defendant is subject to the criminal sanction based upon
the commission of a kidnapping if his or her acts occurred for the purpose of either
facilitating the commission of a felony or facilitating his or her escape following the
commission of a felony. See Davis v. N.C. Granite Corp., 259 N.C. 672, 765 (1963)
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Opinion of the Court
(holding that, “where a statute contains two clauses which prescribe its applicability,
and the clauses are connected by a disjunctive (e.g., ‘or’), the application of the statute
is not limited to cases falling within both clauses, but will apply to cases falling within
either of them” (cleaned up)). An argument that defendant’s actions in moving the
victim to the closet in the second bedroom after having raped her “made the
commission of the rape easier” because it “helped [d]efendant get away with the rape”
and “made it easier for [him] to shower and destroy evidence” effectively conflates
actions that made it more likely that defendant would avoid apprehension for the
rape with the actions necessary to commit the rape itself. In other words, the
argument upon which the State relies would, if adopted, effectively eliminate the
distinction between the commission of a kidnapping for the purpose of “facilitating
the commission of any felony” and the commission of a kidnapping for the purpose of
“facilitating flight of any person following the commission of a felony,” a result that
cannot be squared with the unambiguous statutory language making facilitation of
the commission of a crime and flight from a crime two different bases for finding that
the defendant has committed a kidnapping. See State v. Morgan, 372 N.C. 609, 614
(2019) (recognizing that “a statute may not be interpreted in a manner which would
render any of its words superfluous” (cleaned up)).13
13 Similarly, we are not persuaded by the State’s argument that moving the victim to
the closet in the second bedroom facilitated the commission of the rape because it “prolong[ed]
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Opinion of the Court
¶ 46 As a result, we hold that the portions of our prior decision in Hall upon which
the State and the dissenting opinion at the Court of Appeals relied are fundamentally
inconsistent with Faircloth and Morris and, therefore, must be overruled. See Janus
v. Am. Fed’n of State, Cnty., and Mun. Emps., Council 31, 138 S. Ct. 2448, 2478–79
(2018) (listing factors that should be considered in the course of deciding whether a
prior decision should be overruled, including “the quality of [the prior decision’s]
reasoning, the workability of the rule it established, its consistency with other related
decisions, developments since the decision was handed down, and reliance on the
decision”). For that reason, we hold that, in instances in which the grand jury has
alleged that a defendant unlawfully confined, restrained, or removed a victim from
one place to another without his or her consent for the purpose of facilitating the
commission of a felony, “the felony that is the alleged purpose of the kidnapping must
occur after the kidnapping.” Jordan, 186 N.C. App. at 584; see also Faircloth, 297
[her] pain and suffering” and “continued the trauma of the rape.” The infliction of physical
or emotional pain, while inherent in the commission of the offense, is not an element of rape,
nor is a victim’s immediate trauma after the rape even sufficient to elevate a particular rape
from a second-degree to a first-degree offense. See State v. Boone, 307 N.C. 198, 205 (1982)
(holding that, in order for mental injury to constitute the “serious personal injury” sufficient
to support a conviction for first-degree rape, “ordinarily the mental injury inflicted must be
more than the res gestae results present in every forcible rape and sexual offense,” so that
the State must “offer proof that such injury was not only caused by the defendant but that
the injury extended for some appreciable time beyond the incidents surrounding the crime
itself”), overruled on other grounds by State v. Richmond, 347 N.C. 412, 430 (1998).
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Opinion of the Court
N.C. at 108; Morris, 147 N.C. App. at 253; Brooks, 138 N.C. App. at 192.14 In addition,
we hold that, in this case, all of the evidence presented at trial, when considered in
the light most favorable to the State, tends to show that the felony that defendant
allegedly attempted to facilitate by kidnapping the victim occurred before defendant
moved the victim to the closet in the second bedroom. As a result, there is a fatal
variance between the allegation in the indictment that defendant moved the victim
to the closet “for the purpose of facilitating the commission of a felony, first degree
rape,” and the evidence elicited at trial that tended to show that the rape of the victim
had been completed prior to the point in time at which the relevant kidnapping
allegedly occurred, so that the trial court erred by failing to grant defendant’s motion
to dismiss the second count of first-degree kidnapping for insufficiency of the
evidence. See State v. Gibson, 169 N.C. 318, 322 (1915) (holding that a dismissal
based upon the existence of a fatal variance between the indictment and the evidence
“is based on the assertion, not that there is no proof of a crime having been committed,
but that there is none which tends to prove the particular offense charged in the bill
14 Other than Kyle, in which, unlike in Hall, the Court attempted to explain how
defendant’s restraint of the victims facilitated the commission of burglary, the only other case
that appears to have followed Hall is State v. Holloway, an unpublished decision in which
the Court of Appeals rejected the defendant’s assertion that the State had failed to prove that
he had kidnapped the victim “to facilitate the attempted armed robbery” given that the
evidence tended to show that the robbery was complete before the defendant placed the victim
in his car. No. COA 16-940. 658, 2017 WL 2118712, at *5 (N.C. Ct. App. May 16, 2017)
(unpublished). Aside from the fact that Holloway is unpublished and lacks any precedential
value, it is inconsistent with Faircloth, Morris, Jordan, and Brooks and, for that reason, offers
minimal support for a decision adhering to Hall.
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Opinion of the Court
has been committed” or, “[i]n other words, the proof does not fit the allegation”)
(emphasis in original).
III. Conclusion
¶ 47 Thus, for the reasons set forth above, we hold that the trial court erred by
denying defendant’s motion to dismiss the second first-degree kidnapping charge that
had been lodged against defendant given that the evidence elicited at trial, when
taken in the light most favorable to the State, did not support a finding that
defendant had committed the crime alleged in the indictment. As a result, we affirm
the decision of the Court of Appeals and remand this case to the Court of Appeals for
further remand to the trial court for additional proceedings not inconsistent with this
opinion.
AFFIRMED.
Chief Justice NEWBY dissenting.
¶ 48 This case requires us to determine whether the trial court erred when it denied
defendant’s motion to dismiss a kidnapping charge. This Court affirms a trial court’s
denial of a motion to dismiss if, when viewed in the light most favorable to the State,
there is substantial evidence that the defendant committed each essential element of
the charged crime. The essential element at issue in the present case is whether
defendant kidnapped the victim for the purpose of facilitating the commission of rape.
Based on our current case law, the record evidence is sufficient to allow a rational
juror to conclude that the second kidnapping facilitated the rape. Thus, the trial
court’s denial of defendant’s motion to dismiss should be affirmed. Nevertheless, the
majority overrules forty years of precedent to reach its decision to affirm the Court of
Appeals’ reversal of defendant’s conviction. I respectfully dissent.
¶ 49 Defendant broke into the 80-year-old victim’s house through the front door and
kidnapped the victim by forcibly moving her to a bedroom. Defendant raped the
victim in the bedroom and kidnapped her again by moving her to a different bedroom
and tying her to a chair. The victim told defendant that her daughter was on the way,
and defendant responded that if the victim’s daughter arrived while he was still
there, he would kill the victim. Defendant barricaded the bedroom door and told the
victim that she better not come out until he was finished taking a shower. The victim
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Newby, C.J., dissenting
eventually escaped from the bedroom to find the shower still running, but defendant
had already left the house.
¶ 50 Defendant was charged, inter alia, with one count of first-degree rape and two
counts of first-degree kidnapping. The indictment provides as follows regarding the
kidnapping charges:
II. And the jurors for the State upon their oath present that
on or about the date(s) of offense shown and in the county
named above [defendant] unlawfully, willfully and
feloniously did
kidnap [the victim], a person who had attained and the age
of 16 years, by unlawfully confining, restraining and
removing her from one place to another without her
consent and for the purpose of facilitating the commission
of a felony, first[-]degree rape, by moving [the victim] from
the kitchen to the back bedroom. [The victim] was not
released by . . . defendant in a safe place and was bruised.
III. And the jurors for the State upon their oath present
that on or about the date(s) of offense shown and in the
county named above [defendant] unlawfully, willfully and
feloniously did
kidnap [the victim], a person who had attained and the age
of 16 years, by unlawfully confining, restraining and
removing her from one place to another without her
consent and for the purpose of facilitating the commission
of a felony, first[-]degree rape, by moving [the victim] from
the back bedroom to another bedroom and put her into a
closet. [The victim] was not released by . . . defendant and
she was forcibly confined to a closet until she freed herself
sometime after . . . defendant left.
Defendant moved to dismiss the second kidnapping charge. The trial court denied
defendant’s motion, and the jury found defendant guilty on all counts. Defendant
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Newby, C.J., dissenting
appealed.
¶ 51 On appeal the Court of Appeals reasoned that this case’s outcome should be
controlled by its prior decision in State v. Morris, 147 N.C. App. 247, 555 S.E.2d 353(2001), aff’d per curiam, 355 N.C. 488, 562 S.E.2d 421 (2002). State v. Elder, 278 N.C.
App. 493, 2021-NCCOA-350, ¶ 36 (citing Morris, 147 N.C. App. at 248–49, 555 S.E.2d
at 353–54 (reversing the defendant’s kidnapping conviction when the State alleged
that the defendant kidnapped the victim to facilitate a rape, but the evidence tended
to show only that the defendant kidnapped the victim to facilitate flight)). The Court
of Appeals also cited its prior decision in State v. Jordan, 186 N.C. App. 576, 651
S.E.2d 917 (2007), for the proposition that “the felony that is the alleged purpose of
the kidnapping must occur after the kidnapping.” Elder, ¶ 34 (quoting Jordan, 186
N.C. App. at 584, 651 S.E.2d at 922). Therefore, according to the Court of Appeals
majority, because defendant had already completed the rape when he moved the
victim from the first bedroom to the second bedroom, defendant could not have moved
the victim for the purpose of facilitating the rape. Id. ¶ 32. The Court of Appeals thus
reversed defendant’s second kidnapping conviction. Id.
¶ 52 The dissenting opinion at the Court of Appeals, however, relying on an older,
authored opinion from this Court, noted that “[t]he occurrence of all essential
elements of a crime does not mean the commission of a crime ceases.” Id. ¶ 89 (Tyson,
J., concurring in part and dissenting in part) (citing State v. Hall, 305 N.C. 77, 82–
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Newby, C.J., dissenting
83, 286 S.E.2d 552, 556 (1982), overruled on other grounds by State v. Diaz, 317 N.C.
545, 346 S.E.2d 488 (1986)). According to the dissenting opinion, the trial court did
not err in denying defendant’s motion to dismiss the second kidnapping charge
because the second kidnapping facilitated the commission of the rape by preventing
the victim from contacting help or fleeing, prolonging the victim’s pain and trauma,
and allowing defendant an opportunity to destroy evidence. Id. ¶ 92. As such, the
dissenting opinion would have found no error in defendant’s second kidnapping
conviction. Id. ¶ 94. The State appealed to this Court based upon the dissenting
opinion at the Court of Appeals.
¶ 53 The task here is to determine whether the trial court erred in denying
defendant’s motion to dismiss the second kidnapping charge. This Court reviews a
trial court’s denial of a motion to dismiss de novo. State v. Blagg, 377 N.C. 482,
2021-NCSC-66, ¶ 10 (quoting State v. Golder, 374 N.C. 238, 250, 839 S.E.2d 782, 790
(2020)). “In ruling on a motion to dismiss, the trial court need determine only whether
there is substantial evidence of each essential element of the crime and that the
defendant is the perpetrator.” Id. (quoting Golder, 374 N.C. at 249, 839 S.E.2d at
790). Substantial evidence only requires “more than a scintilla of evidence,” State v.
Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982), or “the amount necessary to
persuade a rational juror to accept a conclusion,” Blagg, ¶ 10 (quoting Golder, 374
N.C. at 249, 839 S.E.2d at 790). “In evaluating the sufficiency of the evidence to
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Newby, C.J., dissenting
support a criminal conviction, the evidence must be considered in the light most
favorable to the State; the State is entitled to every reasonable intendment and every
reasonable inference to be drawn therefrom.” Id. (quoting Golder, 374 N.C. at 249–50,
839 S.E.2d at 790).
¶ 54 At the time of defendant’s crimes, kidnapping was defined as follows:
(a) Any person who shall unlawfully confine, restrain, or
remove from one place to another, any other person
16years 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, shall
be guilty of kidnapping if such confinement, restraint or
removal is for the purpose of:
....
(2) Facilitating the commission of any felony or
facilitating flight of any person following the
commission of a felony[.]
N.C.G.S. § 14-39 (2021). “Facilitate” simply means to make the commission of the
crime easier. State v. Kyle, 333 N.C. 687, 694, 430 S.E.2d 412, 415–16 (1993).
¶ 55 “It has long been the law of this state that a defendant must be convicted, if
convicted at all, of the particular offense charged in the warrant or bill of indictment.”
State v. Faircloth, 297 N.C. 100, 107, 253 S.E.2d 890, 894 (1979). The indictment in
the present case stated that defendant committed the second kidnapping “for the
purpose of facilitating the commission of a felony, first[-]degree rape, by moving [the
victim] from the back bedroom to another bedroom.” Therefore, the relevant question
is whether substantial evidence shows that the second kidnapping facilitated, or
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Newby, C.J., dissenting
made easier, the commission of the rape.
¶ 56 The majority contends that a kidnapping cannot facilitate a rape that has
already occurred. Our long-standing case law, however, holds that an act can
facilitate the commission of a crime even if the act occurs after the elements of the
crime have all been met. See Hall, 305 N.C. at 82–83, 286 S.E.2d at 556 (“[T]he fact
that all essential elements of a crime have arisen does not mean the crime is no longer
being committed. That the crime was ‘complete’ does not mean it was completed.”);
Kyle, 333 N.C. at 694, 430 S.E.2d at 415–16 (noting that an act “facilitate[s]” a crime
if it makes the crime “easier”).
¶ 57 Forty years ago, this Court decided a similar case. In Hall the defendant sought
to reverse his kidnapping conviction, arguing that the State failed to prove the theory
charged in the indictment—i.e., that the defendant kidnapped the victim for the
purpose of facilitating the commission of armed robbery. Hall, 305 N.C. at 82, 286
S.E.2d at 555. The defendant contended there was a fatal variance in the indictment
because he kidnapped the victim to facilitate his flight rather than the commission of
the armed robbery. Id. We rejected the defendant’s argument and explained that
[t]he purposes specified in [N.C.]G.S. [§] 14-39(a) are not
mutually exclusive. A single kidnapping may be for the
dual purposes of using the victim as a hostage or shield and
for facilitating flight, or for the purposes of facilitating the
commission of a felony and doing serious bodily harm to the
victim. So long as the evidence proves the purpose charged
in the indictment, the fact that it also shows the
kidnapping was effectuated for another purpose
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Newby, C.J., dissenting
enumerated in [N.C.]G.S. [§] 14-39(a) is immaterial and
may be disregarded.
Id. Thus, we determined that the defendant kidnapped the victim both for the
purpose of facilitating the armed robbery and for the purpose of facilitating flight. Id.
¶ 58 The defendant in Hall also contended that the kidnapping could not have
facilitated the armed robbery because the armed robbery was already complete when
the kidnapping occurred. Id. We again rejected the defendant’s argument and further
explained that “the fact that all essential elements of a crime have arisen does not
mean the crime is no longer being committed. That the crime was ‘complete’ does not
mean it was completed.” Id. at 82–83, 286 S.E.2d at 556. Therefore, we found no error
in the defendant’s kidnapping conviction. Id. at 83, 286 S.E.2d at 556.
¶ 59 Similarly, nearly thirty years ago in Kyle the indictment charged that the
defendant kidnapped the victim “for the purpose of facilitating the commission of the
felonies of murder and burglary, and facilitating the flight of [the defendant]
following his participation in the commission of the felonies of burglary and murder.”
Kyle, 333 N.C. at 693, 430 S.E.2d at 415. The defendant argued that the burglary was
complete upon his entrance into the house and that the subsequent kidnapping thus
could not have facilitated the commission of the burglary. Id. at 695, 430 S.E.2d at
416. We rejected the defendant’s contention and cited Hall for the proposition that
“the fact that all the essential elements of a crime have arisen does not mean the
crime is no longer being committed. That the crime was ‘complete’ does not mean it
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Newby, C.J., dissenting
was completed.” Id. (quoting Hall, 305 N.C. at 82–83, 286 S.E.2d at 556).1 We then
provided the following analysis:
[T]he evidence shows that, once [the] defendant entered
the apartment, he waved the gun around and backed [the
victim] and her son . . . up against a side wall in the living
room. [The d]efendant was standing between the victim
and the door to the apartment. Restraining the victim and
her son in her apartment in this manner made the crime of
burglary easier by enabling [the] defendant to carry out his
felonious intent. If [the] defendant had not restrained the
victim and had instead allowed her to flee from his
presence, he may not have completed his intent to kill her.
Id. Thus, we concluded that the evidence supported a reasonable inference that the
defendant kidnapped the victim for the purpose of facilitating his commission of
murder and burglary. Id. at 696, 430 S.E.2d at 417.
¶ 60 Here there is substantial evidence that the second kidnapping facilitated
defendant’s commission of the rape, as well as facilitating flight. Just as the
kidnapping in Kyle “made the crime of burglary easier by enabling [the] defendant to
carry out his felonious intent,” Kyle, 333 N.C. at 695, 430 S.E.2d at 416, the second
kidnapping in the present case made the crime of rape easier by allowing defendant
the opportunity to shower and destroy evidence before the victim could seek help. The
1 We recognized in Kyle that Hall had been overruled on other grounds by Diaz, 317
N.C. 545, 346 S.E.2d 488. See Kyle, 333 N.C. at 695, 430 S.E.2d at 416. Our decision in Diaz
did not overrule our determination in Hall that “the fact that all the essential elements of a
crime have arisen does not mean the crime is no longer being committed.” See id. (quoting
Hall, 305 N.C. at 82–83, 286 S.E.2d at 556). In footnote 7, the majority in this case concedes
that this is a correct understanding of the case law.
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Newby, C.J., dissenting
second kidnapping also prolonged the victim’s torment because defendant’s use of
threat and force continued. Though the elements of rape were already satisfied at the
time of the second kidnapping, “the fact that all essential elements of a crime have
arisen does not mean the crime is no longer being committed. That the crime was
‘complete’ does not mean it was completed.” Hall, 305 N.C. at 82–83, 286 S.E.2d at
556. Therefore, under Hall and Kyle, the evidence in the present case, viewed in the
light most favorable to the State, is sufficient to allow a rational juror to conclude
that the second kidnapping facilitated the commission of the rape. The trial court
thus did not err in denying defendant’s motion to dismiss the second kidnapping
charge.
¶ 61 Now the majority overrules this binding precedent of forty years in Hall and
its progeny. Instead, the majority concludes that our decision here is controlled by a
per curiam affirmance of the Court of Appeals’ decision in Morris.2 See Morris, 355
N.C. 488, 562 S.E.2d 421. The majority relies on a per curiam opinion despite it being
well understood that an authored opinion should be given more weight than a per
curiam opinion.
¶ 62 Further, the facts in Morris are distinguishable from those in the present case.
In Morris the defendant knocked the victim unconscious and raped her. Morris, 147
2 Interestingly, in a different opinion released today, the same majority gives less
weight to a per curiam opinion than to an authored opinion. See Cedarbrook Residential Ctr.,
Inc. v. N.C. Dep’t of Health & Hum. Servs., 2022-NCSC-120.
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Newby, C.J., dissenting
N.C. App. at 248–49, 555 S.E.2d at 354. The victim awoke during the rape, but the
defendant knocked her unconscious again. Id. When the victim awoke for the second
time, she was locked in a storage closet. Id. at 249, 555 S.E.2d at 354. Defendant was
charged with second-degree rape and second-degree kidnapping. Id. at 248, 555
S.E.2d at 353. The indictment stated that the defendant kidnapped the victim “for
the purpose of facilitating the commission of a felony.” Id. at 250, 555 S.E.2d at 355.
The trial court denied the defendant’s motion to dismiss the second-degree
kidnapping charge, id. at 250, 555 S.E.2d at 354, and a jury found the defendant
guilty of both charges, id. at 248, 555 S.E.2d at 353. The defendant argued to the
Court of Appeals that the trial court erred by denying his motion to dismiss because
the evidence was insufficient to show he kidnapped the victim for the purpose of
facilitating the rape. Id. at 250, 555 S.E.2d at 354.
¶ 63 The Court of Appeals agreed with our explanation in Kyle that “ ‘to facilitate’
means ‘to make easier’ ” but concluded that the facts before it did not support the
theory that the kidnapping made the rape easier. Id. at 252, 555 S.E.2d at 356(quoting Kyle, 333 N.C. at 694, 430 S.E.2d at 415–16). Specifically, the Court of
Appeals reasoned as follows:
While there is little question [the] defendant’s actions
made his flight from the scene easier and was an attempt
to cover up his act, the removal of the victim to the storage
closet in no way made [the] defendant’s rape of her easier,
as all the elements of rape were completed before the
removal. Again, defendant’s actions possibly would support
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Newby, C.J., dissenting
a conviction of second[-]degree kidnapping for the purpose
of facilitating his flight from the commission of a rape;
however, the State has failed to carry its burden in proving
[the] defendant’s actions facilitated [the] defendant’s
commission of the actual rape.
Id. at 252–53, 555 S.E.2d at 356. Thus, the Court of Appeals reversed the defendant’s
kidnapping conviction. Id. at 253, 555 S.E.2d at 356. We then issued a per curiam
opinion affirming the Court of Appeals’ decision. See Morris, 355 N.C. 488, 562 S.E.2d
421.
¶ 64 The majority’s reliance on our per curiam affirmance in Morris to decide the
present case is misguided. First, by its very nature, a per curiam affirmance does not
articulate any reasoning to support the decision. Further, unlike in Morris, the record
evidence here, viewed in the light most favorable to the State, shows that the second
kidnapping made the rape easier. Specifically, the primary purpose of the second
kidnapping was to allow defendant to remain in the victim’s house for a longer period
in order to destroy evidence. Moreover, defendant tied the victim to a chair and moved
her to the second bedroom immediately after raping her and while she was conscious.
These facts demonstrate the victim’s continued torment and defendant’s continued
use of threat or force. Because such evidence was lacking in Morris, that case is
distinguishable and thus should not control the outcome of the present case.
¶ 65 In summary, an act “facilitates” a crime when it makes that crime easier. See
Kyle, 333 N.C. at 694, 430 S.E.2d at 415–16. Further, our long-standing case law
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Newby, C.J., dissenting
establishes that a subsequent act can make a crime easier because “the fact that all
essential elements of a crime have arisen does not mean the crime is no longer being
committed. That the crime was ‘complete’ does not mean it was completed.” Hall, 305
N.C. at 82–83, 286 S.E.2d at 556. Here defendant kidnapped the victim after raping
her so that he could take a shower and destroy evidence. These facts are sufficient for
a rational juror to conclude that the second kidnapping made the rape easier. The
trial court thus properly denied defendant’s motion to dismiss the second kidnapping
charge. To reach its decision to affirm the Court of Appeals’ reversal of defendant’s
conviction, the majority today overrules forty years of precedent. I respectfully
dissent.
Justice BERGER joins in this dissenting opinion.