{ "id": 4157858, "name": "STATE OF NORTH CAROLINA, Plaintiff v. JAMES ELVIN TOLLISON, Defendant", "name_abbreviation": "State v. Tollison", "decision_date": "2008-05-20", "docket_number": "No. COA07-1125", "first_page": "552", "last_page": "561", "citations": [ { "type": "official", "cite": "190 N.C. App. 552" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "655 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640208 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/655/0402-01" ] }, { "cite": "647 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638976 ], "pin_cites": [ { "page": "684" } ], "opinion_index": 0, "case_paths": [ "/se2d/647/0679-01" ] }, { "cite": "615 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633348 ], "year": 2005, "pin_cites": [ { "page": "690", "parenthetical": "internal citations, internal quotation marks, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0688-01" ] }, { "cite": "655 S.E.2d 915", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640283 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "917", "parenthetical": "internal citations, internal quotation marks, and brackets omitted" }, { "page": "917" } ], "opinion_index": 0, "case_paths": [ "/se2d/655/0915-01" ] }, { "cite": "250 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "105" } ], "opinion_index": 0 }, { "cite": "39 N.C. 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App.", "case_ids": [ 8551893 ], "year": 1979, "pin_cites": [ { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0319-01" ] }, { "cite": "361 N.C. 703", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3735905, 3743043, 3746508, 3743410, 3738611, 3744404, 3735988, 3737112, 3740671 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0703-04", "/nc/361/0703-05", "/nc/361/0703-03", "/nc/361/0703-06", "/nc/361/0703-07", "/nc/361/0703-09", "/nc/361/0703-01", "/nc/361/0703-02", "/nc/361/0703-08" ] }, { "cite": "488 S.E.2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "531" } ], "opinion_index": 0 }, { "cite": "346 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139592 ], "year": 1997, "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0404-01" ] }, { "cite": "603 S.E.2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "109" } ], "opinion_index": 0 }, { "cite": "359 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798427 ], "year": 2004, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0001-01" ] }, { "cite": "185 N.C. 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App.", "case_ids": [ 8209211 ], "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0227-01" ] }, { "cite": "500 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "665" } ], "opinion_index": 0 }, { "cite": "348 N.C. 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659827 ], "year": 1998, "pin_cites": [ { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0684-01" ] }, { "cite": "608 S.E.2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "359 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3802538 ], "year": 2005, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0312-01" ] }, { "cite": "511 S.E.2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "303", "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "350 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132085 ], "year": 1999, "pin_cites": [ { "page": "80", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0079-01" ] }, { "cite": "171 N.C. App. 518", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8438167 ], "year": 2005, "pin_cites": [ { "page": "520", "parenthetical": "internal citations, internal quotation marks, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0518-01" ] }, { "cite": "402 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "814" } ], "opinion_index": 0 }, { "cite": "328 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541401 ], "year": 1991, "pin_cites": [ { "page": "420" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0409-01" ] }, { "cite": "127 N.C. App. 252", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11794356 ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0252-01" ] }, { "cite": "261 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "196" }, { "page": "196" } ], "opinion_index": 0 }, { "cite": "299 N.C. 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573221 ], "year": 1980, "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0029-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-39", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)(2)" } ], "opinion_index": 0 }, { "cite": "188 N.C. App. 562", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155327 ], "year": 2008, "pin_cites": [ { "page": "565", "parenthetical": "internal citations, internal quotation marks, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0562-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 15-153", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "156 L. Ed. 2d 702", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "539 U.S. 985", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8940409, 8940346, 8940372, 8940287 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/539/0985-04", "/us/539/0985-02", "/us/539/0985-03", "/us/539/0985-01" ] }, { "cite": "582 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "600-01" }, { "page": "600" }, { "page": "600" } ], "opinion_index": 0 }, { "cite": "357 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491439 ], "pin_cites": [ { "page": "267-68" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0257-01" ] }, { "cite": "151 L. Ed. 2d 548", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "534 U.S. 1046", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9215521, 9215684, 9215772, 9215847, 9215659, 9215565, 9215710, 9215824, 9215635, 9215608, 9215738, 9215802, 9215550, 9215583 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/534/1046-01", "/us/534/1046-08", "/us/534/1046-11", "/us/534/1046-14", "/us/534/1046-07", "/us/534/1046-03", "/us/534/1046-09", "/us/534/1046-13", "/us/534/1046-06", "/us/534/1046-05", "/us/534/1046-10", "/us/534/1046-12", "/us/534/1046-02", "/us/534/1046-04" ] }, { "cite": "545 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "208" } ], "opinion_index": 0 }, { "cite": "353 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135771 ], "year": 2001, "pin_cites": [ { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0400-01" ] } ], "analysis": { "cardinality": 895, "char_count": 20805, "ocr_confidence": 0.744, "pagerank": { "raw": 5.8556481381023964e-08, "percentile": 0.3633101775431695 }, "sha256": "c7a9c1f1cccbc9cc28b609529b3f215f8773afbb5c6e18498d1d28321af0d213", "simhash": "1:eaafd430d02810ea", "word_count": 3542 }, "last_updated": "2023-07-14T19:40:45.332452+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA, Plaintiff v. JAMES ELVIN TOLLISON, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant was convicted by a jury of two counts of first degree kidnapping and two counts of indecent liberties with a child. Defendant appeals. The issues before this Court on appeal are whether the trial court committed reversible error in (1) denying defendant\u2019s motion to dismiss at the close of the State\u2019s evidence, (2) denying defendant\u2019s motion in limine regarding the incidents which occurred in Lumberton, North Carolina, and (3) instructing the jury on the charge of first-degree kidnapping. For the following reasons, we conclude the defendant received a fair trial, free from reversible error.\nI. Background\nThe State\u2019s evidence tended to show the following: Kim was born on 13 November 1989. Kim lived with her grandmother, who had legally adopted her, her siblings, and defendant, her grandmother\u2019s husband. Kim\u2019s relationship with defendant was good until she turned around twelve or thirteen. During the summer of 2002, defendant told Kim it was okay to kiss him, and kissed her \u201ctry[ing] to stick his tongue in [her] mouth.\u201d Kim pulled away. Defendant asked Kim if she had ever seen or touched a penis before to which she responded, \u201c[N]o.\u201d Defendant then pulled out his penis and forced Kim to touch it, \u201crubbing up and down.\u201d Defendant told Kim, \u201c[D]on\u2019t tell anybody or I\u2019ll deny it.\u201d Kim struggled to get away and then proceeded to the living room where defendant made her \u201clay with him on the couch\u201d and put[] his hand down [her] shirt.\u201d\nDuring February of 2003, Kim\u2019s grandmother had surgery and arranged for Kim and her sister to stay somewhere else. Defendant brought Kim and her sister back home while Kim\u2019s grandmother was still in the hospital. Kim was asleep in the living room when defendant took her back to his bedroom and told her to take off all of her clothes so that he could give her a \u201cmassage[.]\u201d Defendant rubbed lotion all over Kim\u2019s body including her breasts, legs, back, and buttocks. Kim told defendant to stop, and after the massage defendant had Kim put her clothes back on and \u201ch\u00f3gtied\u201d her by tying her feet and hands behind her back and placing a sock in her mouth.\nLater that same day, defendant also told Kim to clean the bathroom door and then barred the door, lifted up her shirt, and touched her breasts. Kim\u2019s brother walked in; defendant told him to leave and closed the door. Defendant then pulled off Kim\u2019s pants and stuck his penis between her legs. Kim cried and asked defendant to stop and saw \u201cwhite stuff\u2019 come out of defendant\u2019s penis. Defendant told Kim not to tell anyone, to clean herself off, and forced her to get in the shower.\nOn 27 February 2003, defendant got Kim out of her bed at approximately 5:30 a.m. and carried her to the bathroom. Defendant again pulled Kim\u2019s pants down and \u201cstuck his penis between [her] legs\u201d and told her to stop crying. Again, Kim saw \u201cwhite stuff\u2019 come out of defendant\u2019s penis. Defendant wiped himself off with a towel and so did Kim. Defendant carried Kim naked back to bed. That day Kim told her Aunt Cherie what defendant had been doing to her. Kim was taken to the hospital, and later defendant\u2019s semen was found on Kim\u2019s pants.\nOn or about 19 May 2003, defendant was indicted on two counts of first degree kidnapping and two counts of indecent liberties with a child based on the February 2003 incidents. On or about 22 August 2006, defendant filed a motion in limine \u201cto prohibit the State ... from making any reference to an uncharged alleged Indecent Liberties incident in Lumberton, North Carolina between the defendant and the \u2018victim.\u2019 \u201d Trial began on 7 November 2006, and on or about 9 November 2006, defendant was convicted by a jury of two counts of first degree kidnapping and two counts of indecent liberties with a child. The trial judge determined that defendant had a prior record level of three, and on or about 16 November 2006 sentenced defendant consecutively for 110 to 141 months for each of his first degree kidnapping convictions. The trial judge arrested judgment on defendant\u2019s two convictions of indecent liberties with a child. Defendant appeals.\nThe issues before this Court on appeal are whether the trial court committed reversible error in (1) denying defendant\u2019s motion to dismiss at the close of the State\u2019s evidence, (2) denying defendant\u2019s motion in limine regarding the incidents which occurred in Lumberton, North Carolina, and (3) instructing the jury on the charge of first-degree kidnapping.\nII. Motion to Dismiss\nDefendant first argues\nthe court committed reversible error in denying the defendant\u2019s motion to dismiss the charge made at the end of the State\u2019s evidence where the evidence was insufficient to convince the trier of fact of the defendant\u2019s guilt to the charge of first-degree kidnapping beyond a reasonable doubt in violation of N.C.G.S. \u00a7 15A-1227, the 14th Amendment to the United States Constitution and Article 1, Sections 19, 23 and 27 of the North Carolina Constitution.\nSpecifically defendant claims the trial court erred in denying his motion to dismiss because (1) there was \u201c[a] fatal variance . . . between the evidence presented at trial and the charge alleged in the indictment[,]\u201d and (2) \u201cthe State failed to present sufficient evidence on element number two, that the person had not reached her 16th birthday and her parent or guardian did not consent to this restraint.\u201d For the following reasons, we disagree.\nA. Indictment\nDefendant failed to make a motion to dismiss based on the alleged deficiencies in the indictment; however, \u201cwhen an indictment is alleged to be facially invalid, thereby depriving the trial court of its jurisdiction, it may be challenged at any time, notwithstanding a defendant\u2019s failure to contest its validity in the trial court.\u201d State v. Call, 353 N.C. 400, 429, 545 S.E.2d 190, 208, cert. denied, 534 U.S. 1046, 151 L. Ed. 2d 548 (2001).\nDefendant\u2019s indictments as to the two charges of first degree kidnapping read,\nThe jurors for the State upon their oath present that on or about February 23, 2003 [and February 27, 2003] and in Guilford County, the defendant named above unlawfully, willfully, and feloniously did kidnap [Kim] . . ., a person who had attained the age of sixteen (16) years, by unlawfully restraining the victim, without the consent of the victim\u2019s parent or legal guardian, and for the purpose of facilitating the commission of a felony, Indecent Liberties with a Child. [Kim] . . . was sexually assaulted.\nHowever, it is uncontested that at the time of the 23 and 27 February 2003 incidents Kim had not yet reached the age of 16. Kim\u2019s date of birth is 13 November 1989, and thus she did not reach the age of sixteen until 13 November 2005.\nAn indictment... is a written accusation of a crime drawn up by the public prosecuting attorney and submitted to the grand jury, and by them found and presented on oath or affirmation as a true bill. To be sufficient under our Constitution, an indictment must allege lucidly and accurately all the essential elements of the offense endeavored to be charged.\nThe purpose of such constitutional provisions is: (1) such certainty in the statement of the accusation as will identify the offense with which the accused is sought to be charged; (2) to protect the accused from being twice put in jeopardy for the same offense; (3) to enable the accused to prepare for trial; and (4) to enable the court ... to pronounce sentence according to the rights of the case.\nEarly common law required that indictments allege every element of the crime for which a defendant was charged, the manner in which the crime was carried out, and the means employed.\n. N.C.G.S. \u00a7 15-153 [now] provides in substance, that an indictment is sufficient if it expresses the charge against the defendant in a plain, intelligible, and explicit manner; and the same shall not be quashed, nor the judgment thereon stayed, by reason of any informality or refinement, if in the bill or proceeding, sufficient matter appears to enable the court to proceed to judgment.\nState v. Hunt, 357 N.C. 257, 267-68, 582 S.E.2d 593, 600-01 (internal citations, internal quotation marks, ellipses, and brackets omitted), cert denied, 539 U.S. 985, 156 L. Ed. 2d 702 (2003); see N.C. Gen. Stat. \u00a7 15-153 (2003).\nIn order for a variance in an indictment to warrant reversal, the variance must be material. A variance is not material, and is therefore not fatal, if it does not involve an essential element of the crime charged.\nState v. Jones, 188 N.C. App. 562, 565, 655 S.E.2d 915, 917 (2008) (internal citations, internal quotation marks, and brackets omitted). N.C. Gen. Stat. \u00a7 14-39 reads in pertinent part:\n(a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person, or any other person under the age of 16 years without the consent of a parent or legal custodian of such person, shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:\n(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony[.]\n(b) There shall be two degrees of kidnapping as defined by subsection (a). If the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree and is punishable as a Class C felony.\nN.C. Gen. Stat. \u00a7 14-39(a)(2), (b) (2003). Our Supreme Court has determined that\nthe victim\u2019s age is not an essential element of the crime of kidnapping itself, but it is, instead, a factor which relates to the state\u2019s burden of proof in regard to consent. If the victim is shown to be under sixteen, the state has the burden of showing that he or she was unlawfully confined, restrained, or removed from one place to another without the consent of a parent or legal guardian.\nState v. Hunter, 299 N.C. 29, 40, 261 S.E.2d 189, 196 (1980).\nWe believe the purposes of an indictment, to\n(1) ... identify the offense with which the accused is sought to be charged; (2) to protect the accused from being twice put in jeopardy for the same offense; (3) to enable the accused to prepare for trial; and (4) to enable the court ... to pronounce sentence according to the rights of the case[,]\nHunt at 267, 582 S.E.2d at 600, were met here as (1) defendant was aware he was being charged with first-degree kidnapping; (2) defendant was in no danger of \u201cbeing twice put in jeopardy for the same offense [;]\u201d (3) defendant was able to \u201cprepare for trial\u201d as he knew the offenses he had been charged with and had lived with Kim and was aware of her uncontested age; and (4) the trial court was able to sentence defendant properly pursuant to his convictions. Furthermore, a victim\u2019s age is not an essential element of first-degree kidnapping, see Hunter at 40, 261 S.E.2d at 196, and therefore the variance in the indictment was not fatal. See Jones at 565, 655 S.E.2d at 917.\nB. Consent to Restraint\nDefendant\u2019s argument that there was insufficient evidence that Kim\u2019s guardian did not consent to the restraint is not properly before this Court. At the close of evidence defendant\u2019s attorney made a motion to dismiss the charges and the following dialogue took place:\nTHE COURT: All right. Outside the presence of the jury are there any motions at the end of all the evidence from the defense?\nMS. BAILEY: Yes, Your Honor. I\u2019d like to make a motion to dismiss. Would like to be heard at this time.\nTHE COURT: Okay.\nMS. BAILEY: Your Honor, my client is indicted with two first degree kidnappings, two indecent liberties. The kidnapping alleges that it was done for the purpose of facilitating a commission of a felony, indecent liberties. I have two cases. One is a very recent case, March 2006. It involves kidnapping. In this case, though, it is a robbery case but in the language of the kidnapping it refers that a person cannot be convicted of kidnapping when the only evidence of restraint is that which is an inherent inevitable feature of another felony. And it also discusses the moving, that the moving was necessary for the felony. It cannot be convicted of kidnapping based on these cases. I would contend that the State cannot go forward with the first degree kidnapping. Any movement or any restraint only \u2014 -in the light most favorable to the State could only have been done for the purpose of an indecent liberties. There is no separate movement or restraint.\nMay I approach with the two cases, Your Honor. I have copies.\nTHE COURT: Yes.\nMS. BAILEY: The other case is involving kidnapping with sex offenses. Unfortunately I could not find a case on kidnapping, indecent liberties, that backs that charge. The cases I\u2019ll be showing to the Court and I have copies for counsel, State versus Antonio Ripley. That was the March 3rd, 2006 case. The other one is State versus Stinson, Court of Appeals, 127 N.C. App. 252. That\u2019s a 1997 case. The first case, the robbery case, is a North Carolina Supreme Court case.\n(Documents handed to the judge.)\nTHE COURT: All right. State wish to respond?\nMS. BAILEY: Your Honor, I don\u2019t think I mentioned that I would make a motion to dismiss on all cases. I\u2019m particularly presenting the case on the kidnapping cases.\nDefendant did not make any further comments regarding the motion to dismiss beyond objecting to the trial court\u2019s denial of defendant\u2019s motion to dismiss. Defendant never mentioned consent, but instead argued solely on the issue of restraint.\n\u201cIn order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.\u201d N.C.R. App. P. 10(b)(1). \u201cThis Court will not consider arguments based upon matters not presented to or adjudicated by the trial tribunal.\u201d State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991). Thus, defendant has waived his right to appellate review on the issue of lack of consent as before the trial court he only argued his motion to dismiss on the issue of double jeopardy.\nIII. Motion in Limine\nDefendant next argues,\nthe trial court committed reversible error by denying the defendant\u2019s motion in limine and allowing into evidence during the State\u2019s case-in-chief the testimony of [Kim] concerning the alleged prior bad acts of the defendant that occurred in Lumberton, North Carolina with [Kim] that were remote in time with no linkage to the current offense nor similar in nature as the evidence was irrelevant, prejudicial and incompetent as well as in violation of N.C.R.Evid. 403 and 404 as well as the defendant\u2019s rights to a fair trial and due process of law.\nHowever,\nOur Supreme Court has consistently held that a motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial. Rulings on motions in limine are preliminary in nature and subject to change at trial, depending on the evidence offered, and thus an objection to an order granting or denying the motion is insufficient to preserve for appeal the question of the admissibility of the evidence.\nState v. Tutt, 171 N.C. App. 518, 520, 615 S.E.2d 688, 690 (2005) (internal citations, internal quotation marks, and brackets omitted) (discussing conflict between N.C. Gen. Stat. \u00a7 8C-1, Rule 103(a)(2) and N.C.R. App. P. 10(b)(1)) (quoting State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per curiam) (citing N.C.R. App. P. 10(b)(1); State v. Dennison, 359 N.C. 312, 608 S.E.2d 756 (2005) (per curiam); Martin v. Benson, 348 N.C. 684, 685, 500 S.E.2d 664, 665 (1998)). Defendant failed to plead plain error, and as defendant failed to object to the \u201calleged prior bad acts of the defendant that occurred in Lumberton, North Carolina\u201d at the time the testimony regarding these acts was presented at trial, he has waived this issue on appeal. See id.\nIV. Jury Instructions\nLastly, defendant argues,\nThe trial court committed reversible plain error by instructing the jury as to the charge of first-degree kidnapping that the child had not reached its 16th birthday and her parent or guardian did not consent to the restraint when the indictment alleged that she had attained the age of 16 years therefore not requiring the consent of a parent or guardian thus changing the burden of proof required by the State of North Carolina in violation of the 6th and 14th Amendments to the United States Constitution and Article 1, Section 22 of the North Carolina Constitution.\n[As defendant concedes,] [b]ecause defendant failed to object to the jury instructions in this case, this assignment of error must be analyzed under the plain error standard of review. Plain error with respect to jury instructions requires the error be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected. Further, in deciding whether a defect in the jury instruction constitutes \u2018plain error,\u2019 the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury\u2019s finding of guilt.\nState v. Wood, 185 N.C. App. 227, 232, 647 S.E.2d 679, 684 (internal citations, internal quotation marks, and brackets omitted) (quoting State v. Bell, 359 N.C. 1, 23, 603 S.E.2d 93, 109 (2004); State v. Holden, 346 N.C. 404, 435, 488 S.E.2d 514, 531 (1997)), disc. rev. denied, 361 N.C. 703, 655 S.E.2d 402 (2007). \u201cIn determining whether the variance of the trial court\u2019s charge from the precise allegations of the bill constituted prejudicial error requiring reversal, we must look to the purposes served by a bill of indictment.\u201d State v. Rhyne, 39 N.C. App. 319, 324, 250 S.E.2d 102, 105 (1979).\nWe have already determined that the four purposes of a bill of indictment have been met in this case as defendant was aware he was being charged with first degree kidnapping, was not in any danger of being tried twice for the same offense, was able to \u201cprepare for trial\u201d on the appropriate charges, and the court was able to properly sentence him. Hunt at 267, 582 S.E.2d at 600. As the purposes of an indictment have been met, and as the trial court properly instructed the jury as to first-degree kidnapping as it applied to the case by stating, \u201cIf you do not so find or have a reasonable doubt as to one or more of these things, then it would be your duty to return a verdict of not guilty .... [including,] that the person had not reached her sixteenth birthday and her parent or guardian did not consent to this restraint[,]\u201d we do not conclude that there was plain error in the instructions to the jury.\nV. Conclusion\nFor the foregoing reasons, we conclude defendant received a fair trial, free from reversible error.\nNO ERROR.\nJudges HUNTER and ELMORE concur.\n. In order to protect the identity of the victim, we will refer to her by the pseudonym \u201cKim.\u201d", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Kathleen U. Baldwin, for the State.", "Haral E. Carlin, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA, Plaintiff v. JAMES ELVIN TOLLISON, Defendant\nNo. COA07-1125\n(Filed 20 May 2008)\n1. Indictment and Information\u2014 kidnapping \u2014 age of victim\u2014 variance not fatal\nA variance in a kidnapping indictment was not fatal where the indictment erroneously alleged that the victim was 16 years old. The defendant was aware that he was being charged with first-degree kidnapping, defendant was in no danger of double, jeopardy, defendant was able to prepare for trial in that he had lived with the victim and was aware of her age, and the trial court was able to properly sentence defendant.\n2. Appeal and Error\u2014 preservation of issues \u2014 different argument below \u2014 not considered\nDefendant waived his right to appellate review on the issue of consent in a kidnapping prosecution where he only argued below the issue of restraint and double jeopardy.\n3. Appeal and Error\u2014 preservation of issues \u2014 failure to object \u2014 plain error not pled \u2014 issue not considered\nDefendant waived appellate review of the admission of alleged prior acts where he did not object at trial and failed to plead plain error.\n4. Kidnapping\u2014 variance concerning age of victim\u2014 instructions\nThere was no plain error in the instructions in a kidnapping prosecution where defendant contended that there was a variance concerning the age of the victim.\nAppeal by defendant from judgments entered on or about 16 November 2006 by Judge Ronald E. Spivey in Superior Court, Guilford County. Heard in the Court of Appeals 5 March 2008.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Kathleen U. Baldwin, for the State.\nHaral E. Carlin, for defendant-appellant." }, "file_name": "0552-01", "first_page_order": 584, "last_page_order": 593 }