State v. Conrad

239 S.E.2d 260 (1977)

293 N.C. 735

STATE of North Carolina v. Gerald Dermont CONRAD.

No. 100.

Supreme Court of North Carolina.

December 15, 1977.

*261 Cahoon & Swisher by Robert S. Cahoon, Greensboro, for defendant-appellant.

Rufus L. Edmisten, Atty. Gen. by Associate Atty. Nonnie F. Midgette, Raleigh, for the State.

COPELAND, Justice.

Defendant assigns many errors, among them the denial of his motion for nonsuit. For reasons hereinafter indicated, we conclude that the failure to grant nonsuit for defendant was error and reverse the decision of the Court of Appeals.

In considering a motion for nonsuit, the court must view the evidence in the light most favorable to the State. State v. White, 293 N.C. 91, 235 S.E.2d 55 (1977). There must be sufficient evidence to provide a reasonable basis for the jury to find that (1) the crime charged was in fact committed, (2) by the person charged. State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976). Evidence which merely raises surmise or conjecture of guilt is insufficient to withstand nonsuit. State v. Minor, 290 N.C. 68, 224 S.E.2d 180 (1976).

Prior to its amendment in 1975, G.S. 14-39 contained no definition of the crime of kidnapping. Under the common law definition as set out by our court, it was essential that the victim be taken and carried away to some other place. State v. Roberts, 286 N.C. 265, 210 S.E.2d 396 (1974); State v. Dix, 282 N.C. 490, 193 S.E.2d 897 (1973). The 1975 General Assembly rewrote the statute to include confinement or restraint for certain specified purposes in the definition of the crime, thereby eliminating the asportation requirement.

In the instant case, the State contends that defendant, by threats and deception, confined the prosecuting witness for the purpose of terrorizing her and thereby forcing her to commit prostitution. We note that the State's case hinged on proof of confinement for the purpose of terrorizing the alleged victim, since prostitution is a misdemeanor and therefore not within G.S. 14-39(a)(2) which proscribes confinement, restraint or removal for the purpose of facilitating the commission of a felony. In instructing the jury, the trial court defined "terrorize" as "to intentionally threaten, intimidate or appeal to the fears of another sufficient to place an ordinarily prudent person in fear for his life or personal safety." The word has further been defined, as it related to a statute prohibiting the making of "terroristic threats", as "to reduce to terror by violence or threats, and terror means an extreme fear or fear that agitates body and mind." State v. Gunzelman, 210 Kan. 481, 486, 502 P.2d 705, 710 (1972).

The primary evidence relied on by the State as proof that defendant confined the prosecuting witness for the purpose of terrorizing her is as follows: On several occasions defendant shouted at her to stay *262 in her room. Defendant told the prosecuting witness that the local law enforcement officials were his friends. In one instance, defendant told her to sit in a chair in his room. During this time he looked at a gun and billy club on the wall, although he never made any threat to use either of the weapons. Defendant remarked at another time that girls who did not make money got killed. Defendant also shouted at the witness for leaving her room, saying that if she wanted to get killed he could take care of it.

This evidence alone might well be sufficient to withstand a motion for nonsuit. In view of the remainder of the testimony of the prosecuting witness however, we find that a reasonable inference of defendant's guilt could not be drawn.

The primary factors which rebut any inference in favor of the State are: (1) At no time was there any display of force to cause Mildred to remain with defendant. (2) The only physical contact between the prosecuting witness and defendant was when he attempted to seduce her and, upon her refusal, immediately desisted. (3) The witness was allowed to go shopping with other girls in defendant's employ, unaccompanied by defendant. (4) She at all times had money in her possession which could have been used to escape. (5) She was allowed to go horseback riding with one of the girls at a location forty-five to fifty-five minutes' drive from the motel. (6) The witness went to a poker game approximately one hour's drive from the motel with one of defendant's friends, where she made $86.00 in tip money and later spent the night at the friend's house because he was unable to drive. (7) The prosecuting witness was experienced in worldly affairs far beyond her years.

While it is elementary that conflicts in the evidence must be resolved in favor of the State in ruling on a motion for judgment of nonsuit, State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971), cert. denied, 414 U.S. 874, 94 S. Ct. 157, 38 L. Ed. 2d 114 (1973), the unconflicting testimony of the prosecuting witness here completely belies any assertion that she was in fact confined against her will for the purpose of terrorizing her. Mildred appears to have been permitted to roam in an unfenced pasture, with little or no confinement or restraint. Although we find the alleged actions of defendant abhorrent, it is our conclusion that they present insufficient evidence to submit a kidnapping charge to the jury; therefore, the judgment and decision appealed from are

REVERSED.