No. 865SC1115 | N.C. Ct. App. | Jun 16, 1987
After indictment for first degree rape and first degree kidnapping, defendant was found guilty of misdemeanor assault on a female and first degree kidnapping. The trial judge sentenced defendant to 40 years’ imprisonment for the kidnapping conviction and two years’ imprisonment for the assault conviction. Defend
The State’s evidence at trial tended to show that, after the prosecuting witness drove defendant home, defendant asked her to take him to another location. When she refused, defendant removed the keys from her car, pulled her behind a house, ordered her to undress and forced her to have sexual intercourse. During that time, defendant allegedly struck the prosecuting witness and threatened to harm her if she did not cooperate. Defendant later forced her to accompany him to another location where he again forced her to have sexual intercourse. Testifying on his own behalf, defendant only admitted slapping the prosecuting witness after an argument over the prosecuting witness’s drug use. The prosecuting witness did not initially identify defendant as the man who allegedly raped her. The jury returned verdicts for first degree kidnapping and misdemeanor assault on a female.
The sole issue for this Court’s determination is whether the trial court committed plain error in instructing the jury on a theory of kidnapping not charged in the indictment. The indictment for kidnapping provided in pertinent part:
The defendant . . . unlawfully, willfully and feloniously did kidnap, confine, restrain and remove from one place to another Mary E. Grant, a person who had attained the age of 16 years, for the purpose of facilitating the commission of the felony of Rape and for the purpose of terrorizing the said Mary E. Grant, and further did sexually assault her. [Emphasis added.]
The indictment for rape provided in part:
The defendant . . . unlawfully, willfully and feloniously did ravish and carnally know Mary E. Grant, a female person, by force and against her will, and inflicted serious personal injury upon the person of Mary E. Grant. [Emphasis added.]
In its charge to the jury, the trial court instructed that the defendant could be convicted of kidnapping if the jury found:
That the defendant restrained and/or removed Mary Grant for the purpose and with the specific intent of facilitating his commission of the felony of rape and/or doing serious bodily injury to Mary Grant. [Emphasis added.]
Since the indictment for rape alleged “serious personal injury,” the State argues the kidnapping and rape indictments give defendant proper notice of the charges when construed together. We find no merit to the State’s contention and conclude the trial court’s instructions were in error.
The State further contends that, even if we find the jury instructions erroneous, defendant waived appellate review of the issue by failing to interpose a timely objection. We note that defendant did not object to the judge’s instructions to the jury. Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure provides:
No party may assign as error any portion of the jury charge or omissions therefrom unless he objects thereto before the jury retires to consider its verdict ....
However, our Supreme Court has mitigated the harshness of Rule 10(b)(2) by adopting the “plain error” rule by which an appellate court may notice plain errors or defects affecting substantial rights although such errors or defects were not brought to the trial court’s attention. State v. Odom, 307 N.C. 655" court="N.C." date_filed="1983-03-08" href="https://app.midpage.ai/document/state-v-odom-1306170?utm_source=webapp" opinion_id="1306170">307 N.C. 655, 660, 300 S.E. 2d 375, 378-79 (1983). In two cases of similar variance between a kidnapping indictment and jury instructions, our Supreme Court
New trial on first degree kidnapping.