State v. Lee ( 1977 )

234 S.E.2d 482 (1977) 33 N.C. App. 162

STATE of North Carolina
v.
Jeffrey Hughes LEE.

7610SC889.

Court of Appeals of North Carolina.

May 4, 1977.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. William F. Briley, Raleigh, for the State.

George R. Barrett, Raleigh, for defendant.

MARTIN, Judge.

The defendant first assigns as error the trial court's failure to grant defendant's motion for a change of venue. Such a motion is addressed to the sound discretion of the trial judge and his decision in the exercise of this discretion is not reviewable unless gross abuse is shown. State v. Mitchell, 283 N.C. 462, 196 S.E.2d 736 (1973); State v. Allen, 222 N.C. 145, 22 S.E.2d 233 (1942). In order for the defendant to prevail on this assignment of error, he must show an abuse of discretion. State v. Mitchell, supra; State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971). No such abuse has been shown in the case at bar. This assignment of error is overruled.

Defendant's second and fourth assignments of error are based on the contention that the trial court erred in denying defendant's motion to dismiss and his motion in arrest of judgment, both relating to the kidnapping charge. More specifically, the defendant attacks the sufficiency of the indictment for kidnapping. He says that the word "hostage", as used in the statute, is susceptible to several slightly different definitions and, hence, that a man of ordinary intelligence must guess at its meaning. Accordingly, he contends that the statute is void because of uncertainty, vagueness, and indefiniteness. We disagree.

The defendant in the case at bar was tried for kidnapping pursuant to G.S. 14-39(a)(1) which provides as follows:

"(a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person, or any other 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:

(1) Holding such other person for ransom or as a hostage or using such other person as a shield." (Emphasis added.)

In explaining to the jury what the word "hostage" meant, the trial judge charged that:

"The term `hostage' when used with reference to a person and in the context in which it is used in the Statute law that I have read to you implies the unlawful taking, restraining or confining of a person with the intent that the person or victim be held as security for performance or forbearance of some act by a third person."

This definition is practically identical to the definition given by the New Mexico Supreme Court in the case of State v. Crump, 82 N.M. 487, 484 P.2d 329 (1971). In that case, the defendant was tried under a kidnapping statute which, like our own G.S. 14-39(a)(1), included the word "hostage." The New Mexico court concluded that:

"It appears clear from the foregoing definitions that the term hostage, when used with reference to a person and in the context in which it is used in our kidnapping statute . . . implies the unlawful taking, restraining or confining of a person with the intent that the person, or victim, be held as security for the performance, or forbearance, of some act by a third person." State v. Crump, supra at 492, 484 P.2d at 334.

Although there is no other North Carolina case on point, Justice Lake, in the case of State v. Shrader, 290 N.C. 253, 225 S.E.2d 522 (1976), gives us some insight as to how our Court might define the term "hostage." Without giving an exact definition of the word, he uses the phrase "shield or hostage" to describe a kidnapping situation in which a victim was unlawfully detained against her will, held as security while the defendant robbed a bank, and forced to drive the defendant away from the scene of the crime.

By reason of the foregoing discussion, we conclude that the term "hostage" as used in G.S. 14-39(a)(1) implies the unlawful taking, restraining, or confining of a person with the intent that the person, or victim, be held as security for the performance or forbearance of some act by a third person.

The instruction given by the trial court in the instant case was therefore sufficient to explain the meaning of the word "hostage" to the jury. The jury was completely and accurately instructed on the kidnapping charge and there was plenary evidence to support its verdict. This assignment of error is overruled.

By his third assignment of error, defendant contends the trial court erred in denying his motion for nonsuit of the kidnapping charge. This argument is without merit. The defendant's only motion for nonsuit was made at the close of the State's evidence. Following the trial court's denial of this motion, the defendant proceeded to introduce his own evidence. It is well settled that a defendant, by introducing evidence at trial, waives his right to except on appeal to the denial of a nonsuit motion made at the close of the State's evidence. G.S. 15-173; State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476 (1971); State v. Logan, 25 N.C.App. 49, 212 S.E.2d 236 (1975). In any event, we reviewed the State's evidence pursuant to G.S. 15-173.1 and conclude that the trial court properly denied defendant's motion for a nonsuit.

Defendant's fifth assignment of error is grounded on the contention that the trial court committed prejudicial error by sustaining the State's objection to the following portion of the testimony by defendant's witness, Dr. James Gross.

"Q. Would his mental condition be affected by rapid movement?

Mr. Hall: Objection.

Court: Sustained.

Defendant's exception No. 6."

The answer to this question was not included in the record. We cannot sustain an exception based on the exclusion of evidence unless the record shows what the witness would have testified had he been permitted to answer.State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E.2d 405 (1971); State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970). Hence, this assignment of error is without merit.

By his eighth and ninth assignments of error the defendant contends the court committed prejudicial error by making certain statements in its charge to the jury. The charge of the court must be read as a whole and construed contextually. State v. Lee, 277 N.C. 205, 176 S.E.2d 765 (1970); Gregory v. Lynch, 271 N.C. 198, 155 S.E.2d 488 (1967); State v. Lankford, 31 N.C.App. 13, 228 S.E.2d 641 (1976). We find that it presents the law of the case in such a manner as to leave no reasonable cause to believe that the jury was misled or misinformed. The instruction made it clear to the jury what they had to find from the evidence in order to convict the defendant. The eighth and ninth assignments of error are therefore overruled.

By his twelfth assignment of error, defendant contends that the trial court erred in the entry of judgment in each case. We find no error in the judgment in the kidnapping case (No. 76CR8439).

However, the State concedes that there is what appears to be a clerical error in the judgment and commitment in the felonious assault case (No. 76CR8440) in that it reads: "This sentence [in case No. 76CR8440] shall commence at the expiration of the sentence this date imposed in case 76CR8440." Because of said error, the judgment in case No. 76CR8440 is vacated and the cause will be remanded to the superior court where defendant will be resentenced on the felonious assault charge.

We have reviewed the other assignments of error brought forward and argued in defendant's brief but find them to be without merit.

In the kidnapping case (No. 76CR8439), no error.

In the felonious assault case (No. 76CR8440), no error in trial but judgment vacated and case remanded for entry of proper judgment.

BRITT and PARKER, JJ., concur.