State v. McRae

292 S.E.2d 778 (1982)

STATE of North Carolina v. Harry James McRAE, aka Harold McCrae.

No. 8114SC1418.

Court of Appeals of North Carolina.

July 6, 1982.

*779 Atty. Gen. Rufus F. Edmisten by Asst. Atty. Gen. Reginald L. Watkins, Raleigh, for the State.

Shirley D. Dean, Durham, for defendant-appellant.

*780 VAUGHN, Judge.

Defendant brings forward several assignments of error. None of them disclose prejudicial error.

Defendant first argues that the court committed prejudicial error in denying his motion to quash the State's subpoena for the two children who were in the automobile at the time of the alleged kidnapping. Defendant's motion, in effect, asked the court to declare the children incompetent witnesses before they had even been called to testify. In North Carolina, however, there is no age below which one is considered incompetent, as a matter of law, to testify. State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978); State v. Turner, 268 N.C. 225, 150 S.E.2d 406 (1966). The court did not err in allowing the children to remain in the courtroom. Defendant's assignment of error is overruled.

Defendant's second assignment of error is that the court erred in denying his motion to compel the superintendent of Dorothea Dix Hospital to make full compliance with an earlier order. That order had directed the defendant to be committed to Dorothea Dix Hospital for determination, in part, if his body contained a hallucinogenic drug.

We hold that the court did not abuse its discretion in finding that the hospital had complied with the order. A submitted report prepared by a forensic psychiatrist at the hospital stated that there were no tests available to determine whether a person had consumed a hallucinogenic drug several months earlier. The assignment of error is overruled.

In Assignment of Error No. 3, defendant argues that the court erred in failing to grant his motion for dismissal of the kidnapping charge. Defendant contends that the State offered no evidence of restraint, as required by G.S. 14-39. We disagree.

On a motion for nonsuit, the evidence must be construed in the light most favorable to the State. State v. Avery, 48 N.C.App. 675, 269 S.E.2d 708 (1980). Here, the evidence shows that defendant entered Mrs. Strickland's car without her permission and ordered her to drive him around. He told her that if she did as he said, no one would be hurt. Mrs. Strickland thought defendant had a pistol under his jacket. A jury could reasonably infer from such evidence that Mrs. Strickland acquiesced to defendant's demands because she feared for her safety. It was not necessary for the State to prove use of actual physical force. State v. Barbour, 278 N.C. 449, 454, 180 S.E.2d 115, 118 (1971), cert. denied, 404 U.S. 1023, 92 S. Ct. 699, 30 L. Ed. 2d 673 (1972). Defendant's assignment of error is overruled.

In Assignments of Error Nos. 4 and 5, defendant excepts to the court's jury instructions. Defendant contends that the court should have instructed on forcible trespass and unauthorized use of a motor vehicle. We disagree.

When a defendant is indicted for a criminal offense, he may, if the evidence so warrants, be convicted of the charged offense or of a lesser offense, all the elements of which are included in the charged offense and capable of proof by proof of the allegations of fact in the indictment. State v. Aiken, 286 N.C. 202, 209 S.E.2d 763 (1974); State v. Riera, 276 N.C. 361, 368, 172 S.E.2d 535, 540 (1970). Kidnapping, as defined by G.S. 14-39, is the confinement, restraint or removal of a person against his will for a felonious purpose. Forcible trespass is the unlawful invasion of the premises of another. Anthony v. Protective Union, 206 N.C. 7, 173 S.E. 6 (1934). Since forcible trespass requires proof of an element not essential to kidnapping, i.e., entry into a person's premises, it cannot be a lesser included offense of kidnapping. The court, therefore, did not err in failing to instruct on forcible trespass.

Unauthorized use of a motor vehicle in violation of G.S. 14-72.2 is considered a lesser included offense of larceny, G.S. 14-72, where there is evidence to support the charge. State v. Ross, 46 N.C.App. 338, 264 S.E.2d 742 (1980). Here, the evidence is uncontradicted that after the exit of Mrs. *781 Strickland and the children, defendant told Mrs. Strickland he was "going to have the car." Where all the evidence tends to show that defendant intended to permanently deprive the victim of her car, it would be improper for the court to instruct on unauthorized use of a conveyance. See State v. Green, 305 N.C. 463, 290 S.E.2d 625 (1982).

No error.

HARRY C. MARTIN and HILL, JJ., concur.