{
  "id": 12126922,
  "name": "STATE OF NORTH CAROLINA v. JOHN DAVIS McCLAIN",
  "name_abbreviation": "State v. McClain",
  "decision_date": "1987-06-16",
  "docket_number": "No. 865SC1115",
  "first_page": "219",
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  "casebody": {
    "judges": [
      "Judges Arnold and martin concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JOHN DAVIS McCLAIN"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nAfter 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\u2019 imprisonment for the kidnapping conviction and two years\u2019 imprisonment for the assault conviction. Defendant asserts error in the jury instructions and appeals his conviction of first degree kidnapping.\nThe State\u2019s 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\u2019s 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.\nThe sole issue for this Court\u2019s 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:\nThe 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.]\nThe indictment for rape provided in part:\nThe 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.]\nIn its charge to the jury, the trial court instructed that the defendant could be convicted of kidnapping if the jury found:\nThat 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.]\nOur courts have consistently held that it is error, generally prejudicial, for the trial court to permit a jury to convict upon some theory not supported by the bill of indictment. E.g., State v. Taylor, 301 N.C. 164, 170, 270 S.E. 2d 409, 413 (1980). Here, the trial judge permitted the jury to convict defendant of kidnapping if it found defendant had restrained and/or removed the prosecuting witness with the \u201cintent of doing serious bodily injury.\u201d However, the State\u2019s indictment alleged the purpose of the kidnapping was \u201cfacilitating\u201d rape and \u201cterrorizing\u201d the prosecuting witness. In a kidnapping case, the indictment must allege the specific purposes on which the State intends to rely; the State is furthermore restricted to proving those purposes alleged in the indictment. State v. Moore, 315 N.C. 738, 743, 340 S.E. 2d 401, 404 (1986) (evidence supported theory of terrorizing victim, but insufficient to support theory that defendant confined or removed victim for purpose of doing serious bodily harm). The State\u2019s kidnapping indictment clearly did not allege the same kidnapping purpose the trial judge submitted to the jury.\nSince the indictment for rape alleged \u201cserious personal injury,\u201d 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\u2019s contention and conclude the trial court\u2019s instructions were in error.\nThe 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\u2019s instructions to the jury. Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure provides:\nNo 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 ....\nHowever, our Supreme Court has mitigated the harshness of Rule 10(b)(2) by adopting the \u201cplain error\u201d 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\u2019s attention. State v. Odom, 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 held the error was plain and ordered new trials for the defendants. State v. Tucker, 317 N.C. 532, 536-40, 346 S.E. 2d 417, 420-22 (1986); State v. Brown, 312 N.C. 237, 246-49, 321 S.E. 2d 856, 861-63 (1984). We see no relevant factors distinguishing the instant case from Brown and Tucker and therefore grant a new trial of the kidnapping charge in this case.\nNew trial on first degree kidnapping.\nJudges Arnold and martin concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General David R. Minges, for the State.",
      "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender David W. Dorey, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JOHN DAVIS McCLAIN\nNo. 865SC1115\n(Filed 16 June 1987)\nKidnapping g 1.3\u2014 purpose of kidnapping \u2014 instruction on theory not alleged \u2014 plain error\nThe trial court committed plain error in instructing the jury on a theory of kidnapping not charged in the indictment where the indictment alleged that the purposes of the kidnapping were facilitating rape and terrorizing the victim and the trial court permitted the jury to convict defendant if it found defendant had restrained or removed the victim with the intent of \u201cdoing serious bodily injury\u201d to her.\nAppeal by defendant from Stevens, Judge. Judgment entered 27 March 1986 in Superior Court, NEW HANOVER County. Heard in the Court of Appeals 10 March 1987.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General David R. Minges, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender David W. Dorey, for defendant-appellant."
  },
  "file_name": "0219-01",
  "first_page_order": 247,
  "last_page_order": 250
}
