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77 N.C. App. 663

State v. Mitchell

Court of Appeals of North Carolina

Decided November 5, 1985

Court of Appeals of North Carolina · decided 1985-11-05

Cited by 2 later decisions — most recently March 1990

2 state decisions

Key passage — most relied on by later courts

“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 . . . but the Court held that the ‘plain error’ rule adopted in State v. Odum, 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 Odum , we conclude that Brown requires us to grant a new trial on the kidnapping charge in this case.”

quoted by 1 later decision, including 97 N.C. App. 472 - State v. Bailey

Applies NC 14 § 14-39

Relies on State v. Odom · State v. Brown · State v. Moore

Good law ✅— No negative treatment on recordhow we know

Decided 1985-11-05

View the full empirical analysis of this case →

WELLS, Judge.

¶1In 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.

¶2In 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.

¶3In 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.

¶4We have carefully examined defendant’s additional assignment of error, find it to be entirely without error and therefore overrule it.

¶5The results are:

¶6In case no. 84CRS575,

¶7No error.

¶8In case no. 84CRS1606,

¶9No error.

¶10In case no. 84CRS4104,

¶11New trial.

Judges Arnold and Martin concur.
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