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State v. Bell9/7/2004
PUBLISHED
Defendant, Roy Jacob Bell, was indicted for assault with a deadly weapon with intent to kill inflicting serious injury, robbery with a dangerous weapon, and first-degree kidnapping. On 30 May 2003, a jury found defendant guilty of assault with a deadly weapon inflicting serious injury, robbery with a dangerous weapon, and first degree kidnapping. The trial court sentenced defendant to consecutive active sentences of 42 to 60 months on the assault charge, 107 to 138 months on the robbery charge, and 121 to 155 months on the kidnapping charge.
The State's evidence at trial tended to show: On 28 October 2002, Johnny Clyburn was driving defendant home when defendant asked for a beer. Mr. Clyburn stopped by his own home and invited defendant in for a beer. Once inside, defendant asked Mr. Clyburn for some money. After defendant's request was denied, he "lost it" and began beating Mr. Clyburn. Mr. Clyburn testified the assault commenced in the den and he lost consciousness. Mr. Clyburn testified that he awoke in his bedroom, with his hands and feet bound.
Defendant brings forward two assignments of error: (1) the trial court committed plain error in instructing the jury on a theory of kidnapping not included in the indictment; and (2) the trial court erred in sentencing defendant as a Level V offender. We reverse in part and affirm in part.
In his first assignment of error defendant contends the trial judge committed plain error in instructing the jury on a theory of kidnapping not charged in the indictment. Since defendant failed to object to the kidnapping instructions at trial, we must consider whether the instructions given amount to plain error. N.C. R. App. P. 10(c)(4).
The plain error rule only applies rarely, in truly exceptional cases. State v. Odom, 307 N.C. 655, 660-61, 300 S.E.2d 375, 378 (1983). To constitute plain error, defendant must convince the appellate court that absent the error, the jury probably would have reached a different verdict. Id. at 661, 300 S.E.2d at 379.
N.C. Gen. Stat. § 14-39 sets forth the elements of the felony of kidnapping. Section (a) enumerates three separate bases for kidnapping: confinement, restraint, or removal. N.C. Gen. Stat. § 14-39(a) (2003). The indictment against defendant in this case alleged both confinement and restraint, but did not allege removal. In instructing the jury on the charge of kidnapping and the lesser-included offense of first-degree kidnapping, the trial judge told the jury they could convict defendant on the theory of either restraint or removal. The jury verdict shows that defendant was found guilty of first-degree kidnapping, but does not indicate whether this was based upon the theory of restraint or removal. Our Supreme Court has held that such a variance between the indictment and the jury charge constitutes error. State v. Tucker, 317 N.C. 532, 537-38, 346 S.E.2d 417, 420 (1986). Whether this error constitutes plain error depends on the nature of the evidence introduced at trial. See id. at 539, 346 S.E.2d at 421 (noting the appellate court must review the entire record in its determination of whether plain error occurred).
In State v. Tucker, the indictment charged kidnapping based upon the theory of removal, however the judge instructed the jury on the theory of restraint. Id. at 538, 346 S.E.2d at 421. Our Supreme Court held " n light of the highly conflicting evidence . . . on the unlawful removal and restraint issues . . ." the instructional error constituted plain error, and a new trial was warranted. Id. at 540, 346 S.E.2d at 422. In State v. Lucas, the indictment charged defendant with kidnapping based upon the theory of confinement and
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