State v. Stokes, 367 N.C. 474

Defendant and an unidentified man robbed S&J Grocery at gunpoint; money and cigarettes were taken, and a shot was fired at the clerk.
Defendant was convicted of second-degree kidnapping, firearm possession by a felon, assault with intent to kill, armed robbery, and habitual felon status; jury did not consider attempted second-degree kidnapping.
Court of Appeals reversed the kidnapping conviction for insufficient evidence of removal, and remanded for potential judgment on lesser included offenses.
State petitioned for discretionary review; this Court allowed limited remand to consider whether the acts satisfied attempted second-degree kidnapping.
Court of Appeals on remand concluded the issue was not preserved; this Court now addresses whether evidence supports attempted second-degree kidnapping and whether the conviction should be treated as a lesser included offense.
Court holds that the State presented sufficient evidence of attempted removal and that the verdict for second-degree kidnapping can be treated as a verdict for the lesser included offense of attempted second-degree kidnapping.

Issue	Plaintiff's Argument	Defendant's Argument	Held
May the State obtain review ex mero motu for a lesser offense?	Stokes argues procedural preservation blocked review.	Stokes contends no alternative argument permitted on appeal by State.	Yes; Court may recognize lesser offense ex mero motu.
Does the State's evidence support attempted second-degree kidnapping separate from armed robbery?	State asserts removal/attempted removal shown by move to back of store and into car.	Defendant argues movements were part of robbery, not separate kidnapping.	Yes; evidence supports attempted removal and thus attempted second-degree kidnapping.

State v. Jolly, 297 N.C. 121 (1979) (jury verdict on greater offense can support lesser included offense)
State v. Barnette, 304 N.C. 447 (1981) (verdict supported by lesser included offense remand)
State v. Dawkins, 305 N.C. 289 (1982) (where greater offense lacks elements but lesser offense exists)
State v. Robinson, 310 N.C. 530 (1984) (verdict on greater offense may reflect lesser included offense)
State v. Gooch, 307 N.C. 253 (1982) (instructional error can render verdict as lesser offense)
State v. Corley, 310 N.C. 40 (1984) (failure to submit essential element can convert to lesser offense)
State v. Freeman, 307 N.C. 445 (1983) (ex mero motu recognition of lesser offense remand; preservation not required)
State v. Irwin, 304 N.C. 93 (1981) (double jeopardy concerns in kidnapping vs. felonies)
State v. Johnson, 337 N.C. 212 (1994) (test for danger beyond inherent risk in underlying felony)
State v. Boyce, 361 N.C. 670 (2007) (separate restraint and removal can constitute kidnapping as a distinct offense)