State v. Wilson, COA23-1031, ___ N.C. App. ___ (Dec. 31, 2024)

In this Beaufort County case, defendant appealed his conviction for second-degree kidnapping, arguing plain error in the jury instructions for instructing the jury on a theory not alleged in the indictment. The Court of Appeals agreed, vacating and remanding for a new trial on the kidnapping charge.

In 2017, law enforcement began investigating allegations of sexual misconduct by defendant against his step-granddaughter when she was ten to fourteen years old. These allegations included incidents where defendant would block the door and force the victim to take pictures or allow him to take pictures of her body before she could leave. At trial, defendant was charged with first-degree kidnapping and several other charges related to indecent liberties with a child and sexual servitude. Relevant for the appeal, the trial court instructed the jury on the lesser-included offense of second-degree kidnapping “based on a theory of involuntary servitude, not sexual servitude as alleged in the indictment.” Slip Op. at 3. Defendant did not object to the instructions at trial.

The Court of Appeals noted that the State conceded the error that the jury instructions did not match the indictment, but argued that it did not rise to the level of plain error. Beginning its inquiry, the court first explained that while no specific pattern jury instruction covered second-degree kidnapping under the theory of sexual servitude, North Carolina Pattern Instruction 210.70 covers sexual servitude, and this instruction was given to the jury. The court noted “that the trial court instructed the jury as to sexual servitude and the jury found Defendant not guilty of all four charges tends to indicate that the jury considered the uncharged ‘involuntary servitude’ to be something different from ‘sexual servitude,’ contrary to the State’s argument on appeal.” Id. at 8. The court went on to explore the two different theories in the statutes, explaining that “[t]he kidnapping statute specifically refers to other statutes that define both ‘sexual servitude’ and ‘involuntary servitude.’” Id. at 11. Here, the trial court provided an instruction on a theory totally separate from what was included in the indictment. Because defendant was convicted on a theory not indicted, and he was acquitted of the charges related to sexual servitude, “the trial court erred in its jury instructions and that instructional error rises to the level of plain error requiring a new trial on the kidnapping charge.” Id. at 16.