State v. Bunch

415 S.E.2d 375 (1992)

106 N.C. App. 128

STATE of North Carolina v. James Alfred Garfield BUNCH, Jr.

No. 916SC173.

Court of Appeals of North Carolina.

April 21, 1992.

*377 Attorney Gen. Lacy H. Thornburg by Asst. Atty. Gen. Julia F. Renfrow, Research Triangle Park, for the State.

Kevin M. Leahy, Ahoskie, for defendant-appellant.

ARNOLD, Judge.

Defendant first argues the trial court erred in denying his motions to continue. On 11 September 1990, defense counsel filed a written motion to continue on the ground that counsel had not had sufficient time to prepare for trial due to his heavy trial schedule. On Monday, 17 September 1990, after the jury was selected, the trial court heard from defense counsel and denied the motion. Defendant then discharged his attorney and elected to represent himself. The trial court recessed in the early afternoon until Wednesday morning, 19 September 1990, in order to give defendant a chance to prepare. On Wednesday morning, defendant orally moved for a continuance and the trial court denied his motion. Defendant asserts that the trial court's denial of the two motions to continue infringed upon his constitutional right to effective assistance of counsel.

Even when filed in a timely manner pursuant to N.C.Gen.Stat. § 15A-952 (Cum.Supp.1991), a motion for continuance is ordinarily left to the sound discretion of the trial court "whose ruling thereon is not subject to review absent an abuse of such discretion." State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982). However, when a motion for a continuance "raises a constitutional issue, the trial court's action upon it involves a question of law which is fully reviewable by an examination of the particular circumstances of each case." State v. Searles, 304 N.C. 149, 153, 282 S.E.2d 430, 433 (1981). But even where the motion raises a constitutional question, its denial "is grounds for a new trial only" when the defendant shows "that the denial was erroneous and also that his case was prejudiced as a result of the error." Branch, 306 N.C. at 104, 291 S.E.2d at 656. Our Supreme Court stated in Branch:

The constitutional guarantees of due process, assistance of counsel and confrontation of witnesses unquestionably include the right of a defendant to have a reasonable time to investigate and prepare his case. No precise time limits are fixed, however, and what constitutes a reasonable length of time for the preparation of a defense must be determined upon the facts of each case.

Id. at 104-05, 291 S.E.2d at 656.

Here, the record reveals that defendant had been in custody since 18 June 1990 and counsel was appointed on 24 July 1990. The case was not called for trial until 17 September 1990. Thus, counsel had approximately 55 days to prepare for trial. In support of the motions to continue, neither defense counsel nor defendant asserted that they expected to present any witnesses on defendant's behalf, nor did either state that defendant intended to testify. The State called only two witnesses: Callis and Eure. A copy of Callis' statement had been previously supplied to counsel. The trial court ordered the prosecutor to supply counsel and defendant with a copy of Eure's statement before trial, even though defendant was not entitled to such copy until after Eure's testimony. At trial, defendant thoroughly cross-examined Callis and Eure. He presented no evidence.

After reviewing the record, we are unable to say that the trial court abused its discretion in denying the motions to continue. Furthermore, even assuming the trial court erred in denying the motions, defendant *378 has failed to show how that error prejudiced his case.

Defendant next argues the trial court erred by denying his motion to dismiss the kidnapping charges at the close of the State's evidence.

On a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from it. If there is substantial evidencewhether direct, circumstantial, or bothto support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.

State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382-83 (1988) (citation omitted). "Substantial evidence" is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981). "The trial court must determine as a question of law whether the State has offered substantial evidence of defendant's guilt on every essential element of the crime charged." Id.

N.C.Gen.Stat. § 14-39 (Cum.Supp. 1991) provides in pertinent part:

(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, ... shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of: (1) Holding such other person for a ransom or as a hostage or using such other person as a shield.

Because "kidnapping is a specific intent crime, the State must prove that the defendant unlawfully confined, restrained, or removed the person for one of the ... purposes set out in the statute." State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986).

"The indictment in a kidnapping case must allege the purpose or purposes upon which the State intends to rely, and the State is restricted at trial to proving the purposes alleged in the indictment." Id. Here the indictments alleged that defendant unlawfully confined, restrained, and removed Eure and Callis from one place to another, without their consent, for the purpose of holding them as hostages. "[T]he 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." State v. Lee, 33 N.C.App. 162, 165-66, 234 S.E.2d 482, 484 (1977). Defendant could have released Callis and Eure when he stopped in the wooded area near Roxboro, North Carolina if he had not intended to hold them as hostages to guarantee his escape would not be thwarted.

The evidence, viewed in the light most favorable to the State, was sufficient to support a finding that defendant unlawfully confined or restrained the officers as security for prevention of his arrest by other law enforcement authorities. This action constitutes holding others as hostages within the meaning of the kidnapping statute. The determination of defendant's guilt or innocence was therefore for the jury, and the trial court properly denied his motion to dismiss.

No error.

PARKER and WALKER, JJ., concur.