In a case decided earlier this month, the Court of Appeals overturned the defendant’s conviction for kidnapping when the evidence showed only an unsuccessful carjacking. See State v. Andrews, No. COA23-675 (N.C. Ct. App. July 2, 2024). Given the particular facts of the case – the defendant threatened the victim with a firearm, the victim fled in his car, and the defendant gave chase in his van – the Court of Appeals might have concluded that a car chase does not constitute the sort of confinement, restraint, or removal that G.S. 14-39 (kidnapping) was intended to address. Instead, it held that the defendant’s high-speed pursuit of the victim was a restraint that was not sufficiently distinct from that inherent in the attempted armed robbery. Citing double jeopardy concerns, the Court of Appeals reversed the kidnapping conviction. This post examines the opinion in Andrews.
I. Common Law and Statutory Kidnapping
At common law, kidnapping was a misdemeanor defined as the unlawful confinement and transportation of another person out of the country. 3 Wayne R. LaFave, Substantive Criminal Law § 18.1 (2nd ed. 2003); cf. State v. Ripley, 360 N.C. 333, 335 (2006). In the United States, courts early on found the component of transportation out of the country to be dispensable. Lafave, Substantive Criminal Law § 18.1; State v. Dix, 282 N.C. 490, 493 (1973). Hence, common law kidnapping was defined as false imprisonment aggravated by conveying the imprisoned person to some other place. Rollin M. Perkins & Ronald N. Boyce, Criminal Law 229 (3rd ed. 1982); State v. Harrison, 145 N.C. 408, 417 (1907). It was the fact, and not the distance, of the forcible removal of the victim that constituted kidnapping. State v. Lowry, 263 N.C. 536, 541 (1965).
In North Carolina, false imprisonment remains a common law offense, defined as the unlawful restraint or detention of another person. State v. Ingland, 278 N.C. 42, 51 (1971). It does not require moving the victim (asportation). Id. False imprisonment is thus a lesser included offense of kidnapping. State v. Whitaker, 316 N.C. 515, 520 (1986). The imprisonment need not be stationary: one might be confined in a moving ship or restrained by being forcibly removed from one place to another. Lafave, Substantive Criminal Law § 18.3(b); Perkins, Criminal Law 224; cf. State v. Sturdivant, 304 N.C. 293, 307 (1981) (victim was restrained in her moving car). Further, imprisonment (like a seizure under the Fourth Amendment) might be accomplished by force or submission to a show of authority. Ingland, 278 N.C. at 51 (“by force or fraud”); State v. Lunsford, 81 N.C. 528, 530 (1879). Absent forcible restraint, however, there is no imprisonment if the victim runs away. Lafave, Substantive Criminal Law § 18.3(b); Perkins, Criminal Law, 225. Again, this mirrors the test for a seizure under the Fourth Amendment. See State v. Turnage, 259 N.C. App. 719, 724 (2018) (citing California v. Hodari D., 499 U.S. 621 626 (1991)).
By a North Carolina statute enacted in 1901, the forcible or fraudulent kidnapping of any person was declared to be a felony. Act of Mar. 14, 1901, ch. 699, sec. 1, 1901 N.C. Sess. Laws 923. In 1933, apparently in response to the Lindbergh kidnapping, the legislature enacted G.S. 14-39, which among other things increased the penalty for kidnapping. Act of May 15, 1933, ch. 542, 1933 N.C. Sess. Laws 890, 890; cf. State v. Roberts, 286 N.C. 265, 275 (1974) (“the Lindbergh tragedy”). Neither the 1901 nor the 1933 statute defined the term “kidnapping,” however, and North Carolina courts continued to use the common law definition, modified to eliminate the component of transportation out of the country. E.g., Ingland, 278 N.C. 42, 50; Lowry, 263 N.C. at 541.
In 1975, the legislature amended G.S. 14-39, abandoning “the traditional common law definition of kidnapping for an element-specific definition.” Ripley, 360 N.C. at 337. The 1975 amendment defined kidnapping as the unlawful confinement, restraint, or removal from one place to another of any person sixteen years of age or older without that person’s consent for the purpose of: (1) holding the victim for ransom or as a hostage, (2) facilitating the commission of a felony or flight after the commission of a felony, or (3) doing serious bodily harm to or terrorizing the victim. Act of June 25, 1975, ch. 843, sec. 1, 1975 N.C. Sess. Laws 1198. Degrees were introduced in 1979 (effective 1981), so that the offense was first-degree kidnapping if the victim was not released in a safe place or had been seriously injured or sexually assaulted. Act of June 4, 1979, ch. 760, sec. 5, 1979 N.C. Sess. Laws, 850, 861. With the addition of various other prohibited purposes (added in 1995 and 2006), this is the form that G.S. 14-39 retains to this day.
II. Concerns About Overcharging
The potential for abusive prosecution has been traced to the 1975 statutory redefinition of kidnapping, as recognized by State v. Fulcher, 294 N.C. 503 (1978). E.g., State v. Boyce, 361 N.C. 670, 672 (2007). In Fulcher, our Supreme Court declared that G.S. 14-39 was not intended to make a restraint which is an inherent, inevitable feature of another felony – such as rape or robbery – also kidnapping so as to permit the conviction and punishment of the defendant for both crimes. Fulcher, 294 N.C. at 523. To hold otherwise, it said, “would violate the prohibition against double jeopardy.” Id. My colleague Jeff Welty has previously posted about Fulcher’s progeny here.
Fulcher was not, however, the first case to worry about overcharging. Five years earlier, and while the common law prevailed, our Supreme Court noted that “some forcible movement is incidental to the commission of a number of crimes,” and “that many prosecutions for kidnapping were instituted for the sole purpose of securing a death sentence or life imprisonment for crimes not subject to such severe penalties” despite the fact that “the movement had created no risk to the victim distinct from that inherent in the crime which it accompanied.” State v. Dix, 282 N.C. 490, 498 (1973). The remedy in Dix was to reject the oft-repeated proposition that it is the fact, and not the distance, of the forced removal that constitutes a kidnapping. Id. at 501. The common law asportation requirement, it held, “never included a mere technical asportation” which was only incidental to another crime. Id. Hence, evidence which showed only an incidental asportation (a distance of not more than 62 feet) was insufficient to establish a kidnapping. Id. at 502; see also State v. Roberts, 286 N.C. 265, 277 (1974) (holding restraint must be “for some appreciable period of time” and asportation must be “beyond the immediate vicinity” of the place of imprisonment).
Fulcher recognized that, under the 1975 statutory definition of kidnapping, no asportation was required given the requisite confinement or restraint. Fulcher, 294 N.C. at 522. It recognized that the legislature had rejected its determinations in Dix and Roberts that restraint must be for an appreciable time and asportation for a substantial distance. Id. “[I]t was clearly the intent of the Legislature,” it said, “to make resort to a tape measure or a stop watch unnecessary in determining whether the crime of kidnapping has been committed.” Id.; cf. Perkins, Criminal Law at 231.
Nevertheless, Fulcher construed the statute to achieve the same end Dix had obtained under the common law, construing the word “restrain” in G.S. 14-39 “to connote a restraint separate and apart from that which is inherent in the commission of [another] felony.” Id. at 523. Our Supreme Court subsequently construed the term “removal” in G.S. 14-39 similarly to require a removal separate and apart from that which is an inherent, inevitable part of another felony. State v. Irwin, 304 N.C. 93, 103 (1981). “To permit separate and additional punishment,” it said, “where there has been only a technical asportation, inherent in [another] offense perpetrated, would violate a defendant’s constitutional protection against double jeopardy.” Id.
The double jeopardy rationale is problematic. Elsewhere, our Supreme Court has recognized that when a single criminal transaction constitutes a violation of more than one criminal statute, there is no double jeopardy violation so long as each statute requires proof of a fact which the other does not. State v. Etheridge, 319 N.C. 34, 50 (1987). Armed robbery and kidnapping, for example, have disparate elements. State v. Handsome, 300 N.C. 313, 317 (1980). Further, even if the elements of two statutory crimes are identical, the defendant may in a single trial be convicted and punished for both if it is found that the legislature so intended. State v. Gardner, 315 N.C. 444, 455 (1986). In any event, a multiple-punishment problem can usually be avoided by arresting judgment on one of the convictions. See State v. Pakulski, 326 N.C. 434, 439 (1990).
Responding to the argument that Fulcher was based on an outmoded understanding of double jeopardy, our Supreme Court reaffirmed its precedent, explaining that Fulcher was decided not only on constitutional grounds but also on the grounds of statutory construction. State v. Beatty, 347 N.C. 555, 558 (1998). Indeed, the separateness of the restraint has been treated, not as a multiple-punishment problem but as an insufficiency in the State’s evidence of kidnapping. See State v. Prevette, 317 N.C. 148, 158 (1986) (vacating conviction); but see State v. Jackson, 309 N.C. 26, 41 (1983) (arresting judgment). When the other offense is armed robbery, the “key question” is whether the victim was exposed to greater danger than that inherent in the armed robbery itself. State v. Johnson, 337 N.C. 212, 221 (1994). Given this formulation, the trial court may instruct the jury on the State’s burden to prove the restraint for kidnapping was independent of any restraint inherent in the other felony. Cf. State v. Pigott, 331 N.C. 199, 209 (1992).
III. Restraint in State v. Andrews
Around 3 am on the night of 13 September 2019, Samuel Wyre was driving his car when a van driven by the defendant pulled onto the road behind him. Wyre slowed down, and the defendant exited the van and approached Wyre’s car. The defendant was carrying a firearm, and he told Wyre to get out of his car. Instead, Wyre drove away. The defendant returned to the van and gave chase, meanwhile firing a shotgun at Wyre’s car. Andrews, No. COA23-675, Slip Op. p. 2. Wyre eluded the defendant and reported the incident to police. Id., Slip Op. p. 3. The defendant was charged with attempting to discharge a firearm into an occupied vehicle, attempted armed robbery, and first-degree kidnapping. The defendant was convicted and appealed. Id.
Before the Court of Appeals, the defendant argued the trial court erred by denying his motion to dismiss the kidnapping charge because the evidence was insufficient to support a finding of restraint beyond that inherent in the attempted armed robbery. Andrews, No. COA23-675, Slip Op. p. 3. The Court of Appeals agreed. It cited Fulcher for the proposition that the restraint which constitutes the kidnapping requires an independent act, separate and apart from the other felony, “in order to avoid running afoul of double jeopardy violations [sic].” Id. at 5. The Court of Appeals found the defendant’s high-speed pursuit of the victim here was not an independent act, separate and apart from the felony of attempted armed robbery, but an inherent, inevitable feature of the attempted armed robbery. Id. at 7. “[I]f we were to affirm defendant’s conviction for kidnapping,” it said, “we ‘would violate the constitutional prohibition against double jeopardy.’ ” Id. at 8 (quoting Fulcher, 294 N.C. at 523-24).
The Court of Appeals’ reasoning is questionable, but the result is sound. Double jeopardy is not the issue. As noted above, given the flaws in the double jeopardy rationale, our Supreme Court has reframed the Fulcher rule as one of statutory construction. See Beatty, 347 N.C. at 559. The pertinent question is whether the pursuit in Andrews constituted a restraint under G.S. 14-39. The Court of Appeals endorsed the defendant’s argument that a successful armed robbery would have required stopping the victim’s car. Andrews, No. COA23-675, Slip Op. p. 8. It overlooked the fact that the victim refused to stop. The treatises agree that, absent a forcible restraint, false imprisonment – which is a lesser included offense of kidnapping – is not accomplished when the victim runs away. There was simply no such imprisonment in Andrews, and hence no kidnapping.
IV. Conclusion
Andrews serves as a reminder that the Fulcher rule (if not its rationale) is alive and well. Prosecutors trying cases of kidnapping and associated felonies should beware. Under Fulcher, the restraint required by G.S. 14-39 must be separate and apart from that inherent in another felony. Beatty, 347 N.C. at 559. The key question is whether there is sufficient evidence of restraint such that the victim was exposed to greater danger than that inherent in the other felony. Johnson, 337 N.C. at 221. In this regard, it may be advisable to request an instruction such as was delivered in Piggot that it is the State’s burden to prove the restraint for purposes of kidnapping is independent of any restraint inherent in the other felony. Pigott, 331 N.C. at 209. To be sure, such an instruction will not save the State’s case if the evidence is deemed insufficient as a matter of law. But it might help the State’s case on appeal if the jury specifically found independent evidence of restraint.