{
  "id": 8524350,
  "name": "STATE OF NORTH CAROLINA v. HARRY JAMES McRAE aka HAROLD McCRAE",
  "name_abbreviation": "State v. McRae",
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  "last_updated": "2023-07-14T18:20:52.636886+00:00",
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  "casebody": {
    "judges": [
      "Judges MARTIN (Harry C.) and HILL concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. HARRY JAMES McRAE aka HAROLD McCRAE"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Judge.\nDefendant brings forward several assignments of error. None of them disclose prejudicial error.\nDefendant first argues that the court committed prejudicial error in denying his motion to quash the State\u2019s subpoena for the two children who were in the automobile at the time of the alleged kidnapping. Defendant\u2019s 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\u2019s assignment of error is overruled.\nDefendant\u2019s 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.\nWe 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.\nIn 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.\nOn 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\u2019s 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\u2019s 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\u2019s assignment of error is overruled.\nIn Assignments of Error Nos. 4 and 5, defendant excepts to the court\u2019s jury instructions. Defendant contends that the court should have instructed on forcible trespass and unauthorized use of a motor vehicle. We disagree.\nWhen 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\u2019s premises, it cannot be a lesser included offense of kidnapping. The court, therefore, did not err in failing to instruct on forcible trespass.\nUnauthorized 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. Strickland and the children, defendant told Mrs. Strickland he was \u201cgoing to have the car.\u201d 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, --- N.C. ---, 290 S.E. 2d 625 (1982).\nNo error.\nJudges MARTIN (Harry C.) and HILL concur.",
        "type": "majority",
        "author": "VAUGHN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General Reginald L. Watkins, for the State.",
      "Shirley D. Dean, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. HARRY JAMES McRAE aka HAROLD McCRAE\nNo. 8114SC1418\n(Filed 6 July 1982)\n1. Witnesses \u00a7 1.2\u2014 children as competent witnesses\nThe trial court properly denied defendant\u2019s motion to quash the State\u2019s subpoena for two children, ages three and four, who were in an automobile at the time of an alleged kidnapping since there is no age below which one is considered incompetent, as a matter of law, to testify.\n2. Criminal Law \u00a764\u2014 test concerning consumption o\u00ed a hallucinogenic drug \u2014 non-available\u2014full compliance with court order\nThe trial court did not abuse its discretion in finding that a hospital had complied with an order in which the hospital was asked to determine, in part, if defendant\u2019s body contained a hallucinogenic drug since the hospital submitted a report prepared by a forensic psychiatrist at the hospital stating that there were no tests available to determine whether a person had consumed a hallucinogenic drug several months earlier.\n3. Kidnapping \u00a7 1.2\u2014 sufficiency of evidence of restraint\nThe trial court did not err in failing to dismiss a kidnapping charge where the evidence showed that defendant entered a woman\u2019s car without her permission and ordered her to drive around, told her that if she did as he said, no one would be hurt, and where the woman thought defendant had a pistol under his jacket. From such evidence the jury could reasonably infer that the woman acquiesced to defendant\u2019s demands because she feared for her safety. G.S. 14-39.\n4. Criminal Law \u00a7 115.1\u2014 kidnapping and felonious larceny \u2014 refusal to instruct on forcible trespass and unauthorized use of a motor vehicle as lesser offenses proper\nIn a prosecution for kidnapping and felonious larceny, the trial judge properly failed to instruct on forcible trespass and unauthorized use of a motor vehicle since forcible trespass requires proof of an element not essential to kidnapping, entry into a person\u2019s premises, and cannot be a lesser included offense of kidnapping, and since all the evidence tended to show that defendant intended to permanently deprive the victim of her car, thereby not supporting the charge of unauthorized use of a motor vehicle. G.S. 14-72.2 and 14-72.\nAPPEAL by defendant from Martin (John CJ, Judge. Judgments entered 5 August 1981 in Superior Court, DURHAM County. Heard in the Court of Appeals 10 June 1982.\nDefendant was convicted of kidnapping and felonious larceny. Judgments imposing concurrent prison sentences were entered.\nThe State\u2019s evidence tends to show the following. On 22 February 1981, Clara Strickland was sitting in her car in the parking lot of an A & P store. With her were her three-year-old granddaughter and another child four years of age. Between 1:15 p.m. and 1:30 p.m., defendant angrily exited from the A & P store. Mrs. Strickland watched him sit on the hood of a car, jump off, hit the car, and then sit on the hood again. Her attention was briefly diverted, and then she heard her car door open. Defendant entered the car without her permission. He had his hand under his jacket as if he had a gun. When defendant ordered her to start the car and drive where he directed, she complied. At a later time, she and the children were able to jump out of the car. Defendant continued to drive, causing damage to the Strickland car and other cars on the street.\nDefendant testified that he did not remember going to the A & P store on 22 February 1981. The previous night, he had attended a party where he had consumed alcohol and marijuana. Fifteen to twenty minutes after drinking something from a glass handed to him, he had become drowsy and thought the walls were coming toward him. He left the party. The next thing he remembered was waking up in jail.\nAttorney General Edmisten, by Assistant Attorney General Reginald L. Watkins, for the State.\nShirley D. Dean, for defendant appellant."
  },
  "file_name": "0225-01",
  "first_page_order": 257,
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