{
  "id": 8525819,
  "name": "STATE OF NORTH CAROLINA v. JAMES LEE ELLIS",
  "name_abbreviation": "State v. Ellis",
  "decision_date": "1988-07-05",
  "docket_number": "No. 8810SC21",
  "first_page": "655",
  "last_page": "658",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
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      "year": 1983,
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    {
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      "year": 1983,
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  "analysis": {
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    "char_count": 6626,
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  "last_updated": "2023-07-14T21:55:12.261630+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Johnson and Smith concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JAMES LEE ELLIS"
    ],
    "opinions": [
      {
        "text": "PHILLIPS, Judge.\nThough defendant was convicted of first degree kidnapping of Donald Joyner, second degree kidnapping of Diane Miller Nar-ducci, felonious larceny of an auto (later reduced to a misdemeanor), common law robbery, assault with a deadly weapon inflicting serious injury, and possession of a handgun by a felon, his appeal challenges only the two kidnapping convictions.\nThe evidence is not disputed. Defendant, a prisoner at Central Prison, was taken by two prison security guards to Rex Hospital for medical treatment and the convictions arose out of his attempt to escape while there. During the dinner hour while one of the guards was away from his room defendant jumped the other guard, Terry Brisson, and obtained his weapon following a struggle in which Brisson was shot in the hand. Defendant ran out of the hospital room and into a stairwell where he stuck the gun against Donald Joyner, an unarmed hospital security officer, and demanded his car keys. When Joyner was unable to produce car keys defendant pressed the gun against his spine and forced him to lead the way out of the hospital to the doctors\u2019 parking lot, where they saw Diane Narducci walking toward them. Defendant removed the gun from Joyner, who escaped down an embankment, and pointed it at Ms. Narducci, who at his insistence led him to her car and gave him the keys, after which defendant drove off in the car and Ms. Narducci ducked behind another vehicle. Defendant testified, in substance, that his main purpose was to escape and that the gun accidentally went off and hit Brisson.\nOf the defendant\u2019s several contentions two \u2014 that the indictment does not support the first degree kidnapping conviction and the court committed plain error in charging the jury on both kidnappings \u2014 have merit and both convictions are vacated.\nThough under G.S. 14-39(b) an essential element of first degree kidnapping is either that the victim was not released in a safe place or was seriously injured or sexually assaulted, the indictment for first degree kidnapping in this case (87CRS11772) did not allege either of these essential elements. It charged only that defendant \u201cunlawfully, willfully and feloniously did kidnap Donald Joyner, a person who had attained the age of 16 years, by unlawfully removing him from one place to another without his consent, and for the purpose of facilitating the commission of a felony, to wit: escape.\u201d Thus, despite its misnomer the indictment alleges only the crime of second degree kidnapping, State v. Jerrett, 309 N.C. 239, 307 S.E. 2d 339 (1983), and if defendant was not entitled to a new trial because the court erred in charging the jury we would treat his conviction as being for that lesser offense. State v. Baldwin, 61 N.C. App. 688, 301 S.E. 2d 725 (1983).\nAs to the jury instruction complained of G.S. 14-39(a) defines kidnapping as follows:\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(1) Holding such other person for ransom or as a hostage or using such other person as a shield; or\n(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; or\n(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person.\n(4) Holding such other person in involuntary servitude in violation of G.S. 14-43.2.\nThus, the unlawful confinement, restraint, or removal of a person is kidnapping only when it is done for one of the purposes stated in this statute. In this case both kidnapping indictments allege that defendant\u2019s purpose was to facilitate \u201cthe commission of a felony, to wit: escape,\u201d and his trial was on that theory. Nevertheless, the court charged the jury that they could find defendant guilty of second degree kidnapping if they found that his purpose was to use the person named \u201cas a shield.\u201d (Emphasis supplied.) This error by the court permitted the jury to convict defendant upon a theory not supported by the bill of indictment, and though defendant failed to object to it the error is nevertheless reviewable under the \u201cplain error\u201d rule laid down in State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983). Permitting the jury to convict upon a theory not charged in the indictment is usually prejudicial error, State v. Taylor, 301 N.C. 164, 270 S.E. 2d 409 (1980), and our Supreme Court has held that it is plain error to charge on a theory of kidnapping not supported by the indictment. State v. Tucker, 317 N.C. 532, 346 S.E. 2d 417 (1986); State v. Brown, 312 N.C. 237, 321 S.E. 2d 856 (1984). Thus, we vacate both kidnapping convictions and remand each case to the Superior Court for a new trial on the charge of second degree kidnapping.\nNo. 87CRS11771 \u2014vacated and remanded for a new trial.\nNo. 87CRS11772 \u2014vacated and remanded for a new trial.\nJudges Johnson and Smith concur.",
        "type": "majority",
        "author": "PHILLIPS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Thornburg, by Assistant Attorney General Elisha H. Bunting, Jr., for the State.",
      "Hensley and Overby, by Robert J. Hensley, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JAMES LEE ELLIS\nNo. 8810SC21\n(Filed 5 July 1988)\n1. Kidnapping \u00a7 1\u2014 kidnapping to facilitate escape charged \u2014 indictment insufficient to charge first degree kidnapping\nAn indictment which charged that defendant kidnapped a named person \u201cwho had attained the age of 16 years, by unlawfully removing him from one place to another without his consent, and for the purpose of facilitating the commission of a felony, to wit: escape\u201d was insufficient to support a first degree kidnapping conviction, since there was no allegation that the victim was not released in a safe place, was seriously injured, or was sexually assaulted. N.C.G.S. \u00a7 14-39(b).\n2. Kidnapping \u00a7 1.3\u2014 kidnapping to facilitate escape charged \u2014 instruction on kidnapping to use person as a shield \u2014 instruction plain error\nThe trial court committed plain error in instructing the jury that they could find defendant guilty of second degree kidnapping if they found that his purpose was to use the person named \u201cas a shield,\u201d but the indictments alleged that defendant\u2019s purpose was to facilitate the commission of the felony of escape.\nAppeal by defendant from Bowen, Wiley F., Judge. Judgments entered 20 August 1987 in Superior Court, WAKE County. Heard in the Court of Appeals 10 May 1988.\nAttorney General Thornburg, by Assistant Attorney General Elisha H. Bunting, Jr., for the State.\nHensley and Overby, by Robert J. Hensley, Jr., for defendant appellant."
  },
  "file_name": "0655-01",
  "first_page_order": 685,
  "last_page_order": 688
}