IN THE SUPREME COURT OF NORTH CAROLINA
No. 285A24
Filed 14 August 2026
STATE OF NORTH CAROLINA
v.
MICHAEL JOHN MOORE, SR.
Appeal pursuant to N.C.G.S. § 7A-30(2) (2023) from the decision of a divided
panel of the Court of Appeals, 296 N.C. App. 264 (2024), vacating a judgment entered
on 10 August 2022 by Judge Gale M. Adams in Superior Court, Cumberland County.
Heard in the Supreme Court on 14 April 2026.
Jeff Jackson, Attorney General, by Caden William Hayes, Assistant Attorney
General, for the State-appellant.
Glenn Gerding, Appellate Defender, by Brandon Mayes, Assistant Appellate
Defender, for defendant-appellee.
DIETZ, Justice.
Defendant Michael John Moore Sr. murdered his wife by taping her mouth
shut and suffocating her with plastic bags. When law enforcement responded to
missing person reports, they found the victim tied to a bed and bound with multiple
restraints. The victim’s hands, knees, and feet were all bound with handcuffs, zip ties,
or cables. Other cables and zip ties bound the victim to the bed, attached her hands
to her knees, and pulled her hands toward her feet.
A jury convicted Moore of both first-degree murder and first-degree
STATE V. MOORE
Opinion of the Court
kidnapping. On appeal, a divided panel of the Court of Appeals vacated the
kidnapping conviction, reasoning that the restraints were an inherent part of the
murder by suffocation. State v. Moore, 296 N.C. App. 264, 270 (2024). The dissent
disagreed, asserting that there were “additional restraints” that went beyond those
inherent in the murder. Id. at 271 (Thompson, J., dissenting).
As explained below, we agree with the dissent. The State presented evidence
of additional bindings beyond any restraint inherent in a murder by suffocation,
including cables and zip ties that confined the victim to the bed and contorted her
body by pulling her hands to her knees and feet. We therefore reverse the decision of
the Court of Appeals.
Facts and Procedural History
Defendant Michael John Moore Sr. met the victim in 2016. The two married in
2017.
In 2018, both the victim’s mother and her employer contacted law enforcement
to report her missing. When officers arrived at the home shared by Moore and the
victim, no one appeared to be home and there was unretrieved mail that was a week
old. After a K-9 acted “irregular” during an exterior sniff of the home, an officer
climbed through a window. Inside, the officer noted a “very cold” temperature and a
mixed smell of chemical agents and human decomposition. More officers then entered
the home and discovered the victim’s body in a bedroom at the rear of the home.
The victim’s nude body was tied to a bed. She had plastic bags around her head,
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Opinion of the Court
secured by zip ties and electrical cords. Underneath the bags, the victim had duct
tape wrapped around her head and mouth in multiple directions. In addition to these
bindings around the head, there was an extension cord wrapped around the victim’s
neck that went underneath the bed’s headboard, binding the victim to the bed.
The victim’s hands and feet were also zip-tied, and her hands were bound in
handcuffs. A brown extension cord wrapped around the handcuffs and pulled the
victim’s hands toward her feet. The victim also had zip ties around her wrists that
bound her arms to the back of her knees. Finally, a separate electric cable bound the
victim’s feet to the bedframe.
Inscribed above the victim’s body on the headboard was the phrase, “Here lies
the ultimate of all strumpets.” There was a single chair from the dining room in the
bedroom. Near the chair was a cup filled with used cigarettes, a pack of cigarettes,
more zip ties, and an empty roll of tape.
Medical examiners determined that the victim died of “asphyxia with plastic
bag, tape, and ligature on head and neck.” Law enforcement officers ultimately
located Moore in Las Vegas, where he had pawned some of the victim’s jewelry. The
State charged Moore with first-degree murder, first-degree kidnapping, and common
law robbery.
At the close of evidence, Moore moved to dismiss the kidnapping charge on the
ground that there was insufficient evidence of any restraint beyond “what was
inherent in the commission of the murder.” The State responded that there was
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Opinion of the Court
evidence of additional restraints beyond what was necessary to bind the victim and
commit a murder by suffocation. The trial court denied Moore’s motion.
The jury convicted Moore on all charges, and the trial court sentenced him to
life in prison without parole for murder, 60 to 84 months in prison for kidnapping,
and 12 to 24 months for robbery.
Moore appealed and challenged his convictions on multiple grounds. Relevant
to this appeal, Moore argued that the trial court erred by denying his motion to
dismiss the kidnapping charge. The Court of Appeals reversed the trial court’s
kidnapping judgment in a divided opinion, with the majority holding that there was
insufficient evidence of any restraint beyond what was inherent in the murder, and
the dissent asserting that there was sufficient evidence. Moore, 296 N.C. App. at 269–
70; id. at 270–71 (Thompson, J., dissenting).
The State timely filed a notice of appeal based on the dissent.1
Analysis
I. Scope of review based on dissent
We begin by discussing the scope of our review. The State filed a notice of
appeal based on the dissent but did not petition for discretionary review of any
additional issues. Thus, “our review is limited to grounds specifically set out in the
dissenting opinion as the basis for that dissent.” Mitchell v. Univ. of N.C. Bd. of
1 Moore filed his initial notice of appeal to the Court of Appeals before the repeal of
the statutory provision creating a right to appeal based on the dissent. See Durham Green Flea Mkt. v. City of Durham, 388 N.C. 543, 548 (2025).
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Opinion of the Court
Governors, 388 N.C. 341, 349 (2025) (cleaned up).
The dissent in this case is quite concise and addressed only a single ground:
that, under the governing line of cases, the State presented substantial evidence of a
restraint of the victim’s body independent of any restraint inherent in the murder.
Moore, 296 N.C. App. at 270–71 (Thompson, J., dissenting).
Most of the State’s brief in this case addresses a different issue: Whether this
Court should overrule the governing line of cases because those decisions are either
contrary to the kidnapping statute, internally inconsistent, or just generally
“unworkable.” After Moore asserted in his appellee’s brief that these arguments went
beyond the grounds set out in the dissent, the State responded by citing a footnote
from this Court’s decision in Piazza v. Kirkbride, 372 N.C. 137, 166–67 n.13 (2019).
In Piazza, we held that an invited error issue not mentioned in either the Court of
Appeals majority or dissent was “inherently intertwined” with the grounds in the
dissent and the additional issues for which the Court had allowed discretionary
review. Id. Thus, we reasoned, the invited error issue could be reviewed by the Court
without issuing a supplemental writ of certiorari. Id. The State contends that the
issues in this case are all similarly intertwined.
We do not agree that this case is analogous to Piazza. The State’s challenges
to our precedent in this case are not inherently intertwined with the grounds set out
in the dissent. To the contrary, they are mutually exclusive. The dissent focuses solely
on whether there was substantial evidence of a restraint independent of that
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Opinion of the Court
necessary for the murder. If we agreed with the State and overruled our precedent
requiring evidence of independent restraint, there would be no need to engage in the
dissent’s analysis at all. These are two entirely discrete issues; they are not
inherently intertwined under Piazza. Accordingly, although we acknowledge that the
precedent identified by the State has caused confusion, we limit our review in this
appeal to the specific ground set out in the dissent below. See Mitchell, 388 N.C. at
349. We take no position on whether, in an appropriate case, that precedent should
be modified or overruled as the State suggests.
II. Restraint inherent in a murder by suffocation
We now turn to the ground set out by the dissent. We begin with an overview
of the relevant kidnapping doctrine. Among other things, section 14-39 of the General
Statutes makes it unlawful to “restrain” someone for any of the purposes set out in
the statute. N.C.G.S. § 14-39(a) (2025).
In this case, no one suggests that the State failed to present substantial
evidence that the victim was restrained. Instead, the issue is whether that restraint
was an inherent part of the victim’s murder. This Court has held that certain felonies
“cannot be committed without some restraint of the victim” and that a kidnapping
conviction cannot be based on a restraint that is “an inherent, inevitable feature” of
that other felony. State v. Fulcher, 294 N.C. 503, 523 (1978).
There are a number of cases examining and applying this rule from Fulcher.
The most relevant to our analysis, and the one relied on by the Court of Appeals
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Opinion of the Court
majority, is State v. Prevette, 317 N.C. 148 (1986). In Prevette, the victim suffocated
“from having a gag tied across her mouth.” Id. at 151. When law enforcement found
the victim’s body, her “hands were bound behind her back” with drapery, “her ankles
were tied together by nylon stockings,” “her knees were bound by a bathrobe belt,”
and “her mouth was bound and gagged through the use of an apron.” Id. A jury
convicted the defendant of both murder and kidnapping. Id. at 149.
We vacated the kidnapping conviction because “the restraint essential to the
kidnapping conviction was an inherent and inevitable feature of this particular
murder.” Id. at 157. We first explained that “the placement of the gag over [the
victim’s] mouth could not have been the proximate cause of her death without the
binding of her hands and feet which prevented the removal of the gag.” Id. Thus, we
explained, “the victim’s death would not have occurred without these other ligatures.”
Id. We emphasized that the State presented no evidence of any restraints or bindings
beyond those “preventing [the victim] from removing a mouth gag.” Id. at 158.
The Court of Appeals majority held that this case is indistinguishable from
Prevette. The majority explained that, because the victim’s “hands, feet, and arms
were restrained, she could not remove the bags that caused her suffocation.” Moore,
296 N.C. App. at 269. Thus, those restraints “were inherent in the murder by
suffocation.” Id. This, in turn, meant “that the State failed to produce substantial
evidence that Defendant restrained the victim independently and apart from the
murder.” Id.
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Opinion of the Court
The dissent disagreed, pointing to “additional restraints exerted against the
victim” that went beyond those described in Prevette. Id. at 271 (Thompson, J.,
dissenting). Specifically, the dissent pointed to “a brown electrical cord wrapped
around her neck and the bed’s headboard” and “zip ties binding her wrists to her
knees.” Id. The dissent asserted that these “additional restraints of the victim” were
sufficient to overcome the motion to dismiss. Id.
We agree that this case is distinguishable from Prevette for the reasons
discussed by the dissent. As in Prevette, the victim’s hands, knees, and feet were
bound in a manner that prevented her from removing the plastic bags and duct tape
that caused her to suffocate. Under Prevette, these restraints are an “inherent” part
of the murder by suffocation. 317 N.C. at 157. But there were many other restraints
in this case that went beyond those described as necessary in Prevette, including
cables and zip ties that confined the victim to the bed and others that contorted her
body and pulled her hands toward her knees and feet. These additional bindings go
beyond any restraint that was either necessary to suffocate the victim or otherwise
inherent in the murder. These additional bindings are therefore substantial evidence
of the restraint element of the kidnapping offense. See State v. Stroud, 345 N.C. 106,
111–12 (1996). Accordingly, the trial court’s ruling on the motion to dismiss should
have been affirmed.
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Opinion of the Court
Conclusion
We reverse the decision of the Court of Appeals.
REVERSED.
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Newby, C.J., concurring in the result only
Chief Justice NEWBY concurring in the result only.
I fully agree with the way in which the majority applied Fulcher, but because
I think we should reassess the correctness of that decision, I concur in the result only.
At the Court of Appeals, both the majority and the dissent, as well as the
parties, wrestled with the proper application of State v. Fulcher, 294 N.C. 503, 243
S.E.2d 338 (1978). In Fulcher, this Court determined that a restraint may not be
punished as a kidnapping unless it is a separate, complete act, independent and apart
from another felony. It was proper for the Court of Appeals and the parties to consider
this case under Fulcher because neither the Court of Appeals nor the trial court could
reconsider Fulcher. Only this Court can, and I believe we should do so here.
Fulcher’s “separate and apart” requirement is not found in the text of N.C.G.S.
§ 14-39—the statute that criminalizes kidnapping. This Court mistakenly believed,
however, that if we were to interpret the statute otherwise, it would create the risk
of the State frequently violating the constitutional prohibition against double
jeopardy. To avoid this perceived problem, it employed the canon of constitutional
avoidance—even though the statute’s plain language was clear and unambiguous. In
short, Fulcher’s separate and apart requirement was not compelled by the statute’s
text, was derived from the unwarranted use of a canon of statutory interpretation,
and was constitutionally unnecessary. Further, the requirement has created disputes
in the trial courts and the Court of Appeals as to its proper application.
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Newby, C.J., concurring in the result only
Here, in his motion to dismiss the first-degree kidnapping charge, defendant
argues that because the restraint of the victim that constituted the kidnapping was
not separate and apart from the restraint that led to the victim’s death, he cannot be
convicted of both first-degree kidnapping and first-degree murder. Put more plainly,
defendant argues that the plastic bags, duct tape, and ligatures around the victim’s
head and neck resulted in asphyxia—which ultimately killed her—only because he
had also bound her hands, legs, and feet, which prevented her from removing the
obstructions to her airway. If defendant had not restrained her so, she would have
lived. Cf. State v. Prevette, 317 N.C. 148, 157, 345 S.E.2d 159, 165 (1986) (“[T]he
placement of the gag over Ms. Jones’ mouth could not have been the proximate cause
of her death without the binding of her hands and feet which prevented the removal
of the gag. . . . [T]he victim’s death would not have occurred without these other
ligatures.”). Because the restraint was necessary to commit the murder, defendant
maintains the restraint cannot also be punished as kidnapping.
To properly understand the defendant’s argument, one must understand the
genesis of the separate and apart requirement upon which it relies. The requirement
stems from this Court’s interpretation of N.C.G.S. § 14-39(a) in Fulcher.
In that case, the defendant forced two women to lie upon a bed at knifepoint,
bound their hands behind their backs with duct tape, and compelled each of them to
perform fellatio on him. Id. at 507, 243 S.E.2d at 342. He was subsequently charged
with and convicted of two counts of kidnapping and two counts of crimes against
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Newby, C.J., concurring in the result only
nature. Id. at 505, 243 S.E.2d at 341. He received sentences for each conviction. Id.
The defendant argued, however, that the kidnapping charges should have been
dismissed as unconstitutional because his bindings of the victims “were merely acts
incidental to the commission of the crimes against nature.” Id. at 517, 243 S.E.2d at
348.
This Court turned to the language of the kidnapping statute, N.C.G.S.
§ 14-39(a), which was materially identical to the modern statute. Id. at 517–18, 243
S.E.2d at 348 (quoting N.C.G.S. § 14-39(a) (1975)). This Court made several
observations about the statute. First, “the statute plainly stat[ed] that confinement,
restraint or removal of the victim for any of the . . . specified purposes [was] sufficient
to constitute the offense of kidnapping.” Id. at 522, 243 S.E.2d at 351. Second, “it was
clearly the intent of the [l]egislature to make resort to a tape measure or a stop watch
unnecessary in determining whether the crime of kidnapping has been committed”;
in other words, it was no longer necessary to physically move a victim a “substantial
distance” or detain them “for some appreciable period of time.” Id. Third, we
explained the plain meaning of “restrain”: “[O]ne who is physically seized and held,
or whose hands or feet are bound, or who, by the threatened use of a deadly weapon,
is restricted in his freedom of motion, is restrained within the meaning of this
statute.” Id. at 523, 243 S.E.2d at 351.
The Court then came to the heart of the defendant’s argument: whether his
restraints of the victims could be punished as kidnappings when those restraints
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Newby, C.J., concurring in the result only
were used to effectuate the crimes against nature. We recognized that
two or more criminal offenses may grow out of the same
course of action, as where one offense is committed with the
intent thereafter to commit the other and is actually
followed by the commission of the other (e.g., a breaking
and entering, with intent to commit larceny, which is
followed by the actual commission of such larceny).
Id. at 523–24, 243 S.E.2d at 351–52. We stated that “[i]n such a case, the perpetrator
may be convicted of and punished for both crimes.” Id. at 524, 243 S.E.2d at 352; see
also id. at 525, 243 S.E.2d at 352–53.
But we also observed as “self-evident” that “certain felonies (e.g., forcible rape
and armed robbery) cannot be committed without some restraint of the victim.” Id. at
523, 243 S.E.2d at 351. We reasoned it “would violate the constitutional prohibition
against double jeopardy” if a “restraint, which is an inherent, inevitable feature of
[another] felony, [is] also kidnapping so as to permit the conviction and punishment
of the defendant for both crimes.” Id.
Putting these pieces together, we remarked, “Thus, there is no constitutional
barrier to the conviction of a defendant for kidnapping, by restraining his victim, and
also of another felony to facilitate which such restraint was committed, provided the
restraint, which constitutes the kidnapping, is a separate, complete act, independent
and apart from the other felony.” Id. at 524, 243 S.E.2d at 352. In light of the foregoing
observations, this Court reasoned that the General Assembly did not intend for the
kidnapping statute to run afoul of the constitutional prohibition of double jeopardy
and therefore “construe[d] the word ‘restrain,’ as used in [N.C.]G.S. [§] 14-39, to
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Newby, C.J., concurring in the result only
connote a restraint separate and apart from that which is inherent in the commission
of the other felony.” Id. at 523, 243 S.E.2d at 351. In other words, this Court applied
the canon of constitutional avoidance and interpreted the statute in a way that would
avoid perceived, potential constitutional problems. See id.; id. at 526–27, 243 S.E.2d
at 353. See generally State v. T.D.R., 347 N.C. 489, 498, 495 S.E.2d 700, 705 (1998)
(“Where one of two reasonable constructions of a statute will raise a serious
constitutional question, it is well settled that our courts should adopt the construction
that avoids the constitutional question.”).
Ultimately, this Court held the defendant’s double jeopardy rights were not
violated. Fulcher, 294 N.C. at 525, 243 S.E.2d at 352. Because the defendant had
bound the victims before forcing them to perform oral sex, “the crime of kidnapping
was complete, irrespective of whether the then contemplated crime against nature
ever occurred.” Id. at 524, 243 S.E.2d at 352. “[T]hough closely related . . . in time,”
the restraints were “not an inherent incident of” the crimes against nature; the
restraints were done to prevent either woman from escaping or assisting the other.
Id.
Both the State and defendant admit that Fulcher and its progeny have
engendered confusion within the courts below as seen by the Court of Appeals
decision in this case, see State v. Moore, 296 N.C. App. 264, 907 S.E.2d 779 (2024), as
well as in prior cases.
Both the State and defendant briefed to this Court the ongoing validity of
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Newby, C.J., concurring in the result only
Fulcher and discussed at oral argument its validity. The State therefore asks this
Court to abandon the rule, specifically arguing that Fulcher’s separate and apart
requirement was not required by the statute’s plain language or double jeopardy
principles. Understandably, defendant opposes this position. The State, however, is
correct.
For starters, Fulcher went about statutory interpretation the wrong way.
Statutory interpretation’s “cardinal goal is to accomplish the intent of the
legislature.” State v. Rogers, 388 N.C. 453, 465, 920 S.E.2d 775, 785 (2025). The best
indicator of legislative intent is the statute’s plain language. See N.C. Farm Bureau
Mut. Ins. Co. v. Hebert, 385 N.C. 705, 711, 898 S.E.2d 718, 724 (2024). “[W]hen the
language of a statute is clear and unambiguous there is no room for judicial
construction[,] and the court must give the statute its plain and definite meaning
without superimposing provisions or limitations not contained within the statute.”
State v. Williams, 291 N.C. 442, 446, 230 S.E.2d 515, 517 (1976).
Importantly, “[t]his Court may turn to other sources to determine legislative
intent”—including canons of construction like the canon of constitutional avoidance—
“only if the statute is ambiguous or susceptible to multiple interpretations.” Hebert,
385 N.C. at 711, 898 S.E.2d at 724. Indeed, the canon of “constitutional avoidance . . .
is only employed when there are two or more reasonable meanings to the statutory
language at issue.” JVC Enters., LLC v. City of Concord, 376 N.C. 782, 788, 855 S.E.2d
158, 162 (2021). In this way, “[w]e are not at liberty to give to a statute a construction
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Newby, C.J., concurring in the result only
at variance with [legislative] intent, even though such construction appears to us to
make the statute more desirable and to free it from constitutional difficulties”—a
maxim that this Court recited in Fulcher yet ignored in practice. 294 N.C. at 520, 243
S.E.2d at 350. In other words, if the plain language of a statute is clear and
unambiguous, this Court must interpret the statute in accord with that plain
language—even if the statute’s plain language runs afoul of the constitution. In that
regrettable instance, this Court’s obligation is to strike down the statute as
unconstitutional, not rewrite the statute in a way to avoid the constitutional conflict.
That power and responsibility rests with the General Assembly, not the courts.
The Court in Fulcher, however, did not apply this traditional methodology.
When this Court walked through N.C.G.S. § 14-39, we did not identify any ambiguity
in the statute, nor did we think that “restrain” had multiple reasonable meanings in
this context. To the contrary, we provided the plain interpretation of restrain: to
restrict one’s freedom of motion by physically seizing and holding, binding hands and
feet, or threatening the use of a deadly weapon. Id. at 523, 243 S.E.2d at 351.
Given the clear, unambiguous language of the statute, this Court’s statutory
interpretation should have concluded. Nevertheless, we proceeded needlessly to apply
the canon of constitutional avoidance anyway. This frolic led the Court to
superimpose a limitation that does not appear in the statute’s text: that the restraint
be “a restraint separate and apart from that which is inherent in the commission of
the other felony.” Id. This was error.
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Newby, C.J., concurring in the result only
What is more, the engrafting of a separate and apart requirement was based
on a faulty constitutional premise—namely, this Court’s misapprehension of double
jeopardy principles. As explained above, the Court in Fulcher reasoned that a
restraint could not be punished as kidnapping if it were an “inherent, inevitable
feature” of another felony. See id. The Court, however, cited no authority for this
proposition, which is inconsonant with double jeopardy principles.1
This Court has explained that both the Federal Constitution and state
constitution include double jeopardy protections to “protect[ ] against (1) a second
prosecution for the same offense after acquittal, (2) a second prosecution for the same
offense after conviction, and (3) multiple punishments for the same offense.”2 State v.
Gardner, 315 N.C. 444, 451, 340 S.E.2d 701, 707 (1986) (emphases added). The focus
of double jeopardy inquiries is therefore on the offense, not the underlying factual
predicate. The “offense” is the “violation of the law; [the] crime.” Offense, Black’s Law
Dictionary (12th ed. 2024).
1 As an aside, it is not clear that murder is a type of felony of which restraint is an
inherent and inevitable feature. The Court provided only two examples of crimes where restraint is an inherent, inevitable feature of the crime: forcible rape and armed robbery. Fulcher, 294 N.C. at 523, 243 S.E.2d at 351. Indeed, one is hard pressed to envision an instance of forcible rape or armed robbery where the perpetrator has not restricted the victim’s freedom of movement by physically seizing them or threatening the use of a deadly weapon. But restraint is not an inherent, inevitable feature of every murder. Indeed, one can think of many ways one might kill another human being without restricting freedom of movement beforehand.
2 The first two scenarios were not implicated in Fulcher, and they are not implicated
in this case. Both Fulcher and this case concern only the third scenario: multiple punishments for the same offense.
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Newby, C.J., concurring in the result only
This Court has further cited the Blockburger Test as the standard of
determining whether a defendant is being punished multiple times for the same
offense:
The applicable rule is that where the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not.
Gardner, 315 N.C. at 454, 340 S.E.2d at 708–09 (quoting Blockburger v. United
States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932)). Thus, “[w]hen each statutory
offense has an element different from the other, the Blockburger test raises no
presumption that the two statutes involve the same offense.” Id. at 455, 340 S.E.2d
at 709. Moreover, “[w]hether . . . multiple punishments may be imposed when a
defendant, in a single trial, is convicted of multiple offenses when some are fully,
factually embraced within others is to be determined on the basis of legislative
intent.” Id. at 460, 340 S.E.2d at 712.
In other words, a double jeopardy violation does not hinge—as the Court in
Fulcher assumed—on whether the factual predicate satisfying one element of one
crime is an “inherent, inevitable feature” of another crime. See Fulcher, 294 N.C. at
523, 243 S.E.2d at 351. Indeed, multiple “criminal offenses may grow out of the same
course of action.” Id. Rather, a double jeopardy inquiry looks at the criminalized
offenses to ensure that Crime A requires proof of at least one element that Crime B
does not and that Crime B requires proof of at least one element that Crime A does
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Newby, C.J., concurring in the result only
not. If this is so, a defendant is not being punished multiple times for the same
offense.
The Court in Fulcher did not employ this approach. Rather than focusing on
the elements of the charged offenses, this Court relied on a nebulous,
difficult-to-parse test of whether a restraint was an “inherent, inevitable” feature of
another felony. Therefore, the Court’s “double jeopardy” concerns in Fulcher, which
swayed our interpretation of the kidnapping statute, were not well founded.
This Court recognized as much in State v. Beatty, 347 N.C. 555, 495 S.E.2d 367
(1998). There “[t]he State contend[ed] that Fulcher was based upon a now-outmoded
understanding of the Double Jeopardy Clause,” and “[i]t argue[d] that under modern
double jeopardy analysis, this Court’s interpretation of N.C.G.S. § 14-39 in Fulcher is
unnecessary and should be overruled.” Id. at 558, 495 S.E.2d at 369. Having
summarized the State’s argument, this Court did not refute it. Instead, we pivoted to
a different defense of Fulcher, stating, “This Court did not decide Fulcher solely on
constitutional grounds, however. Rather, it interpreted the kidnapping statute under
the ‘cardinal principle of statutory construction . . . that the intent of the [l]egislature
is controlling.’ ” Id. (first alteration in original) (quoting Fulcher, 294 N.C. at 520, 243
S.E.2d at 350). This Court defended continued adherence to Fulcher, but notably, it
did not offer double jeopardy concerns as a justification:
The interpretation of a criminal statute by the highest
court of the state that enacted it is generally regarded as
an integral part of the statute. This Court’s long-standing
interpretation in Fulcher of legislative intent in the
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Newby, C.J., concurring in the result only
enactment of N.C.G.S. § 14-39 has become an integral part
of the kidnapping statute, and it thus remains the
appropriate focus for analysis of . . . kidnapping
convictions.
Id. at 558–59, 495 S.E.2d at 369 (citation omitted). By moving on to a different
defense of Fulcher instead of rebutting the State’s argument, this Court tacitly
conceded the point: the double jeopardy justifications for Fulcher’s interpretation of
N.C.G.S. § 14-39 were incorrect.3
In summary, this Court in Fulcher applied the canon of constitutional
avoidance—despite the fact that the statute’s plain language was clear and
unambiguous—to avoid faux double jeopardy issues that were premised upon a
misunderstanding of the constitutional prohibition of double jeopardy. Therefore,
Fulcher should be overruled to the extent it required a restraint to be “separate and
apart from that which is inherent in the commission of [another] felony.” See Fulcher,
294 N.C. at 523, 243 S.E.2d at 351. Instead, “restrain” in N.C.G.S. § 14-39 should be
reinterpreted consistently with the plain language, which is the true indicator of
3 Beatty’s justification for continued application of Fulcher’s interpretation of N.C.G.S.
§ 14-39 was, and still is, unconvincing. First, it is impossible to separate Fulcher’s conception of the General Assembly’s intent from its misconception about double jeopardy. Indeed, the Court in Fulcher opined that an interpretation of the statute that “would violate the constitutional prohibition against double jeopardy” “was not intended by the [l]egislature.” 294 N.C. at 523, 243 S.E.2d at 351. Second, the law is not settled until it is settled right. “That’s how we’ve always done it” is a poor justification for continued adherence to an interpretation that is contrary to the text. See State v. Ballance, 229 N.C. 764, 767, 51 S.E.2d 731, 733 (1949) (“There is no virtue in sinning against light or in persisting in palpable error, for nothing is settled until it is settled right.” (quoting Sidney Spitzer & Co. v. Comm’rs of Franklin Cnty., 188 N.C. 30, 32, 123 S.E. 636, 638 (1924)).
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Newby, C.J., concurring in the result only
legislative intent, to simply mean “a restriction [upon freedom of movement] by force,
threat or fraud, without a confinement.” See id.
So construed, defendant’s kidnapping conviction and sentence were proper.
When considering a motion to dismiss, the question is whether the State presented
substantial evidence of each element of the offense charged and that defendant was
the perpetrator. State v. Stroud, 345 N.C. 106, 111, 478 S.E.2d 476, 479 (1996).
“Substantial evidence is ‘that amount of relevant evidence that a reasonable mind
might accept as adequate to support a conclusion.’ ” Id. (quoting State v. Porter, 303
N.C. 680, 685, 281 S.E.2d 377, 381 (1981)). The evidence must be viewed “in the light
most favorable to the State, and the State is entitled to every reasonable inference to
be drawn therefrom.” Id.
As noted above, there was substantial evidence in this case to support the
elements of both first-degree murder and first-degree kidnapping and to support that
defendant was the perpetrator. Moreover, applying the Blockburger Test, defendant’s
convictions and sentences do not violate the constitutional prohibition of double
jeopardy. Defendant was convicted of first-degree murder on the basis of
premeditation and deliberation, the felony murder rule, and murder by torture. He
was also convicted of first-degree kidnapping.
In general terms, a “murder” is an intentional unlawful killing of another
human being with malice aforethought. State v. Vance, 328 N.C. 613, 621, 403 S.E.2d
495, 501 (1991). Our General Statutes “classif[y] murders as either first or second
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degree, but only for the purposes of assigning punishment.” Id. at 621–22, 403 S.E.2d
at 501. First-degree murder is statutorily defined in N.C.G.S. § 14-17(a), which, in
relevant part, provides, “A murder which shall be perpetrated by . . . torture, or by
any other kind of willful, deliberate, and premeditated killing, or which shall be
committed in the perpetration or attempted perpetration of any . . . robbery [or]
kidnapping . . . shall be deemed to be murder in the first degree . . . .” N.C.G.S.
§ 14-17(a) (2025). As the statute lays out, the crime is first-degree murder, and the
State can obtain a conviction by use of one or several theories. State v. Wilson, 385
N.C. 538, 545, 895 S.E.2d 355, 362 (2023). As noted above, three theories are relevant
here: premeditation and deliberation, felony murder, and murder by torture.
To obtain a conviction for first-degree murder under a premeditation and
deliberation theory, the State must prove beyond a reasonable doubt that the
defendant (1) specifically intended, (2) to unlawfully kill, (3) another human being,
(4) after premeditation (i.e., after thinking for some length of time, however short,
before the actual killing), and (5) deliberation (i.e., after developing the requisite
intent in a cool state of mind and not as the result of violent passion due to sufficient
provocation). See State v. Rodriguez, 371 N.C. 295, 314–15, 814 S.E.2d 11, 25 (2018);
State v. Jones, 303 N.C. 500, 505, 279 S.E.2d 835, 838–39 (1981). “[P]roof of
premeditation and deliberation is also proof of intent to kill.” Jones, 303 N.C. at 505,
279 S.E.2d at 839.
Contrastingly, “[f]irst-degree murder based upon the felony murder rule has
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Newby, C.J., concurring in the result only
only two elements: (1) the defendant knowingly committed or attempted to commit
one of the felonies indicated in N.C.G.S. § 14-17, and (2) a related killing.” State v.
Thomas, 325 N.C. 583, 603, 386 S.E.2d 555, 567 (1989) (Mitchell, J., dissenting)
(citing State v. Reese, 319 N.C. 110, 145, 353 S.E.2d 352, 372 (1987), overruled on
other grounds by, State v. Barnes, 345 N.C. 184, 481 S.E.2d 44 (1997)). Under the
felony murder theory, “[w]hether there was insufficient evidence to show that [the]
defendant either committed the killing himself, intended that the killing take place,
or even knew that the killing would take place is irrelevant.” Reese, 319 N.C. at 145,
353 S.E.2d at 372.
Finally, if the State proceeds under a first-degree murder by torture theory, it
must prove beyond a reasonable doubt (1) “that the defendant intentionally tortured
the victim and [(2)] that such torture was a proximate cause of the victim’s death.”
Stroud, 345 N.C. at 112, 478 S.E.2d at 479.
“Torture is defined as the course of conduct by one or more
persons which intentionally inflicts grievous pain and
suffering upon another for the purpose of punishment,
persuasion, or sadistic pleasure,” and “[c]ourse of conduct
has been defined as the pattern of the same or similar acts,
repeated over a period of time, however short, which
established that there existed in the mind of the defendant
a plan, scheme, system or design to inflict cruel suffering
upon another.”
State v. Richardson, 385 N.C. 101, 145, 891 S.E.2d 132, 171 (2023) (alteration in
original) (quoting State v. Lee, 348 N.C. 474, 489, 501 S.E.2d 334, 343–44 (1998)).
Kidnapping is defined in N.C.G.S. § 14-39(a):
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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, or
any other person under the age of 16 years without the
consent of a parent or legal custodian of such person, shall
be guilty of kidnapping if such confinement, restraint or
removal is for the purpose of:
(2) Facilitating the commission of any felony or
facilitating flight of any person following the
commission of a felony; or
(3) Doing serious bodily harm to or terrorizing the
person so confined, restrained or removed or any
other person . . . .
N.C.G.S. § 14-39(a) (2025) (emphases added). Subsection (b) explains when a
kidnapping is in the first degree: “If the person kidnapped either was not released by
the defendant in a safe place or had been seriously injured or sexually assaulted, the
offense is kidnapping in the first degree . . . .” Id. § 14-39(b). Thus, first-degree
kidnapping by restraint requires the State to prove beyond a reasonable doubt:
(1) that defendant imposed a restraint; (2) that he did so without legal right; (3) that
he did so without the consent of the person restrained (or of the parent or custodian
if the person restrained is under the age of sixteen); (4) that he did so for one of the
purposes enumerated in N.C.G.S. § 14-39(a); and (5) that the restrained person was
(i) seriously injured, (ii) sexually assaulted, or (iii) not released in a safe place.
When the State criminalized kidnapping, it sought to punish the unlawful,
nonconsensual confinement, restraint, or removal of another human being for illicit
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purposes. Substantial evidence in this case shows that defendant restricted the
victim’s freedom of movement without legal right and without her consent to commit
another felony, do serious bodily harm, and/or terrorize her, and that the victim was
seriously injured and not released in a safe place. The jury having concluded that the
State proved each element beyond a reasonable doubt, defendant may be punished
for the crime of first-degree kidnapping.
When the State criminalized murder, it sought to punish the intentional
unlawful killing of another human being with malice aforethought. Substantial
evidence in this case shows that defendant intentionally and unlawfully killed the
victim with malice aforethought. Defendant planned to murder the victim. Having
gathered the instruments necessary to block the victim’s airways, restrain her limbs,
and fasten her to the bed, defendant then carried out his heinous crime, culminating
in the victim’s unimaginably horrific death. Defendant also intentionally inflicted
grievous pain and suffering upon the victim in order to punish her for being, in
defendant’s mind, “the ultimate of all strumpets.” Defendant’s torture of the victim
led directly to her death. What is more, defendant killed the victim while perpetrating
a kidnapping and robbery.4 The jury having concluded that the State proved three
4 Felony murder carries some unique double jeopardy considerations that ultimately
are not implicated in this case. Namely, our cases have held that “in this State a defendant may not be punished for both felony murder and for the underlying, ‘predicate’ felony, even in a single prosecution.” Gardner, 315 N.C. at 460, 340 S.E.2d at 712. Had the jury found defendant guilty of first-degree murder solely on a felony murder theory, and had kidnapping been the only underlying felony found by the jury, then the underlying kidnapping would have merged into the murder conviction, and the kidnapping judgment would have been
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theories of first-degree murder beyond a reasonable doubt, defendant may therefore
be punished for the crime of first-degree murder.
Moreover, there are elements to be proved for each of these crimes that are not
required for the other. For instance, for first-degree kidnapping, the State had to
prove defendant restrained the victim, which is not an essential element of
first-degree murder under any of the theories the jury employed to convict defendant.
Similarly, for first-degree murder, the State had to prove defendant unlawfully killed
the victim, which is not an essential element of first-degree kidnapping.
Although it is unusual that the restraint that constituted the kidnapping was
also used to perpetrate the murder, it is ultimately of no moment. A single action may
violate two laws. Punishing both offenses does not violate the constitutional
prohibition of double jeopardy. The State may punish defendant’s unlawful restraint
of the victim, and it may punish his unlawful killing of the victim.
The majority properly reverses the decision of the Court of Appeals and
reinstates defendant’s kidnapping sentence pursuant to Fulcher. But applying
Fulcher has not been easy, thereby creating confusion in the trial courts and at the
Court of Appeals in the application of North Carolina’s criminal statutes. As a court
arrested. See State v. Barlowe, 337 N.C. 371, 380, 446 S.E.2d 352, 358 (1994). But neither of those conditions are present in this case. The jury found defendant guilty of first-degree murder under two other theories, and it found another underlying felony to support the felony murder conviction—i.e., common law robbery. As such, the rules mentioned above are not triggered. Notably, the rules mentioned above would not have resulted in the kidnapping charge’s dismissal in any event.
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of last resort, and critically the court that created the present issue in the first place,
it is our responsibility to remedy the problem by overruling Fulcher. Because the
majority does not, however, I respectfully concur in the result only.
Justice BARRINGER joins this concurring in the result only opinion.
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