The court of appeals decided State v. Cole, __ N.C. App. __ (2009), yesterday. Simplifying the facts a bit, the two defendants planned to rob two victims, and, brandishing firearms, went to the home the victims shared. One of the victims claimed to be unsure about where her money was. She led one of the defendants on a half-hour wild goose chase to various locations. (They never “found” her money, which was in her pocket the entire time!) Meanwhile, the other defendant remained with the other victim at the victims’ home. At some point, that defendant stole some of the victims’ property. The latter defendant was convicted of, inter alia, kidnapping and armed robbery. On appeal, he argued that he did not restrain the victim beyond the level of restraint inherent in the robbery, and so could not be convicted of kidnapping under State v. Fulcher, 294 N.C. 503 (1978) (“[C]ertain felonies [such as] forcible rape and armed robbery . . . cannot be committed without some restraint of the victim. . . . [T]he Legislature [did not intend] to make a restraint, which is an inherent, inevitable feature of such other felony, also kidnapping so as to permit the conviction and punishment of the defendant for both crimes.”). As a later case explained the Fulcher rule, “[T]he key question is whether the kidnapping charge is supported by evidence from which a jury could reasonably find that the necessary restraint for kidnapping exposed the victim to greater danger than that inherent in the underlying felony itself.” State v. Muhammad, 146 N.C. App. 292, 295 (2001).
The court of appeals agreed with the Cole defendant that his kidnapping conviction could not stand, even though the defendant restrained the victim for 30 minutes, considerably longer than necessary to effectuate the robbery. The court relied in part on State v. Allred, 131 N.C.App. 11 (1998), which in turn relied on State v. Irwin, 304 N.C. 93 (1981). Those cases hold that when a victim is briefly restrained at gunpoint during an armed robbery, or even is moved a small distance as part of the robbery — for example, from the front of a store to the back — a kidnapping conviction cannot be sustained. Neither case involved the sort of protracted restraint at issue in Cole.
Of course, the fact that Cole does not strictly follow from Allred or Irwin does not mean that Cole was wrongly decided. Rather, Cole is a close case in an area where bright lines are difficult to draw. Among the factors that the appellate courts consider when deciding whether a kidnapping conviction can be sustained are (1) whether the victim was bound, (2) whether the victim was injured, (3) whether the victim was moved, and (4) how long the victim was restrained. In Cole, only the fourth factor cut in favor of sustaining the kidnapping conviction, while the others weighed against.
This issue arises with remarkable frequency, and often results in relief on appeal. Among other recent cases in this area, consider State v. Payton, __ N.C. App. __, 679 S.E.2d 502 (2009) (kidnapping conviction not proper where victim was moved to a bathroom during a robbery, but not bound or harmed, following Irwin); State v. Gayton-Barbosa, __ N.C. App. __, 676 S.E.2d 586 (2009) (where the defendant grabbed the victim and assaulted her, the grabbed her again as she attempted to flee, both kidnapping and assault convictions were proper because “[d]etaining [the victim] in her home and then again outside was not necessary to effectuate the assaults charged”); State v. Thomas, __ N.C. App. __, 676 S.E.2d 56 (2009) (rape and kidnapping convictions were both proper where the defendant dragged the victim into his car and drove her around in addition to restraining her during the rape); State v. Taylor, __ N.C. App. __, 664 S.E.2d 375 (2008) (kidnapping conviction vacated because ordering a store employee into the back of the store during a robbery was necessary to the commission of the robbery); and State v. Boyce, 361 NC 670 (2007) (kidnapping conviction proper where the defendant dragged the victim back into her home and then proceeded to rob her).