State v. Mitchell

Nov 5, 1985
No. 8527SC477
Reporters:
, ,
Before:
Wells
WELLS, Judge.

In his first assignment of error, defendant contends that his conviction of second degree kidnapping cannot stand because there was insufficient evidence to support it. Under the provisions of N.C. Gen. Stat. § 14-39 (Cum. Supp. 1983), a kidnapping must have as one of its essential elements a specified unlawful purpose. Defendant was charged with restraining Spake for the purpose of facilitating the commission of a felony or facilitating flight following the commission of a felony, the elements set forth in G.S. 14-39(a)(2). The State’s evidence at trial would allow the jury to find that Spake was restrained by defendant in order to facilitate defendant’s taking of Spake’s wallet contents against Spake’s will, by violence or putting him in fear, which constitutes the felony of common law robbery, State v. Moore, 279 N.C. 455, 183 S.E. 2d 546 (1971), and that Spake was restrained by defendant in order to facilitate defendant’s flight following the commission of this felony. This assignment is overruled.

In his second assignment, defendant contends that he is entitled to a new trial on the kidnapping charge because the trial court instructed the jury on terrorizing, under G.S. 14-39(a)(3), while the indictment alleged that Spake was restrained for the purpose of facilitating the commission of a felony or facilitating the flight of any person following the commission of a felony, under G.S. 14-39(a)(2). We agree and award a new trial on this charge.

In State v. Brown, 312 N.C. 237, 321 S.E. 2d 856 (1984), involving a similar variance in a kidnapping indictment and the jury instruction, our Supreme Court held that a new trial was required. As in this case, the defendant in Brown did not object at trial to the instruction on terrorizing, but the Court held that the “plain error” rule adopted in State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983) was applicable to allow consideration of such an asserted error. While we view Brown as a significant extension and liberalization of the “plain error” standards set out in Odom, *665we conclude that Brown requires us to grant a new trial on the kidnapping charge in this case.

We have carefully examined defendant’s additional assignment of error, find it to be entirely without error and therefore overrule it.

The results are:

In case no. 84CRS575,

No error.

In case no. 84CRS1606,

No error.

In case no. 84CRS4104,

New trial.

Judges Arnold and Martin concur.