D. Kidnapping

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

D. Kidnapping

1. The Basic Statutory Offense

Whoever shall unlawfully seize, confine, inveigle, decoy, kidnap, abduct or carry away any other person by any means whatsoever without authority of law, except when a minor is seized or taken by his parent, is guilty of a felony and, upon conviction, must be imprisoned for a period not to exceed thirty years unless sentenced for murder as provided in Section 16-3-20.

S.C. Code Ann. § 16-3-910 (2003). Kidnapping is a class A felony and is defined as a violent crime, S.C. Code Ann. § 16-1-60 (Supp. 2012); a "most serious offense," § 17-25-45(C)(1) (Supp. 2012); and a no parole offense. S.C. Code Ann. § 24-13-100 (2007). See Chapter I.C.5.,6., and 7.

Some convictions of kidnapping require compliance with the provisions of the Sex Offender Registry Act. S.C. Code Ann. §§ 23-3-400-490 (2007 and Supp. 2012). See subsection C.3.m., supra. Effective June 11, 1999, a kidnapping conviction in which the victim is over 18 requires registration unless the trial judge finds on the record that the offense did not include a completed or attempted sexual offense. Also, a kidnapping conviction in which the victim is a child under 18 requires registration unless the defendant is the parent of the victim.

Prior to an amendment effective June 5, 1991, the penalty for kidnapping was life imprisonment. One whose appeal of his conviction and life sentence was pending on the effective date of the sentencing amendment is not entitled to be resentenced under the new provision. State v. Varner, 310 S.C. 264, 423 S.E.2d 133 (1992). The common-law rule is that one receives "the punishment in effect at the time he is sentenced, unless it is greater than the punishment provided for when the offense was committed." Id. at 265, 423 S.E.2d at 133.

The statute is not unconditionally vague. State v. Smith, 275 S.C. 164, 268 S.E.2d 276 (1980). Smith also upheld the validity of the then mandatory sentence of life imprisonment. Id. at 167, 268 S.E.2d at 278. Nor is the statute overly broad in the context of being a factor in aggravation in a capital punishment determination. State v. Davis, 309 S.C. 326, 348, 422 S.E.2d 133, 148 (1992), cert. denied, 508 U.S. 915 (1993), overruled on other grounds by Brightman v. State, 336 S.C. 348, 520 S.E.2d 614 (1999) (defendant no longer entitled to instruction to resolve doubt between greater and lesser offense in favor of the latter).

An indictment that charges kidnapping "against the peace and dignity of the State" technically refers to the common law offense; nonetheless, such language is sufficient to allege a violation of the statutory crime of kidnapping. State v. Plath, 277 S.C. 126, 134, 284 S.E.2d 221, 225 (1981), overruled by State v. Short, 333 S.C. 473, 511 S.E.2d 358 (1999).

2. Elements

The act involved in kidnapping can be accomplished in a number of different ways. The statute refers to "seize, confine, inveigle, decoy, kidnap, abduct or carry away . . . by any means whatsoever . . . ." S.C. Code Ann. § 16-3-910 (2003). Consequently, once the victim has been grabbed, it would appear that the crime has been completed. See State v. Dildine, 306 S.C. 198, 410 S.E.2d 597 (Ct. App. 1991), cert. denied, (1992) (no need to instruct on the lesser included offense of attempted kidnapping where the evidence indicated that the defendant had "grabbed the victim and pulled her toward the woods." Id. at 200, 410 S.E.2d at 598). The corpus delicti of kidnapping may be established by circumstantial evidence. E.g., State v. Bennett, 328 S.C. 251, 493 S.E.2d 845 (1997).

The act of kidnapping need not involve force. The victim could be inveigled or decoyed to her doom. State v. Stokes, 345 S.C. 368, 548 S.E.2d 202 (2001) (text at n.6 and 7); State v. Plath, 277 S.C. 126, 284 S.E.2d 221 (1981), overruled by State v. Short, 333 S.C. 473, 511 S.E.2d 358 (1999); Ray v. State, 330 S.C. 184, 498 S.E.2d 640, cert. denied, 525 U.S. 905 (1998). Once the victim was restrained by having her hands and ankles secured with duct tape, she had been kidnapped. State v. Tucker, 334 S.C. 1, 13-14, 512 S.E.2d 99, 105, cert. denied, 527 U.S. 1042 (1999).

While the statute is generous in describing the acts involved in kidnapping, it makes no mention of a mental element. Rejecting the possibility that the Legislature may have intended to create a strict liability offense, the Court concluded that the mental element of knowledge is required. State v. Jefferies, 316 S.C. 13, 18, 446 S.E.2d 427, 430-31 (1994), cert. denied, 513 U.S. 1115 (1995). The court noted that earlier...