State v. Harding, ___ N.C. App. ___, 813 S.E.2d 254 (Mar. 6, 2018)

In this kidnapping case, although the trial court erred by instructing the jury on theories that were not alleged in the indictment, no plain error occurred. After rejecting the State’s argument that the defendant was precluded from plain error review, the court noted that the instruction error pertained to the elements that elevate a kidnapping to first-degree: failure to release in a safe place; serious injury to the victim; or sexual assault of the victim. Here, although the indictment charged only the element of sexual assault, the trial court instructed the jury that it could find the defendant guilty based on failure to release in a safe place, sexual assault or serious injury to the victim. Thus, the jury was instructed on elements not charged in the indictment, and this was error. However, the jury was given a special verdict sheet that separately listed all of the elevating elements, and the jury found the defendant guilty based on each individual elevating element. Because the State presented compelling evidence to support the elevating element of failure to release in a safe place (among other things, the defendant left the victim alone at the bottom of a rocky creek embankment under a bridge near a deserted stretch of road) and because the jury separately found the defendant guilty of first-degree kidnapping based on all of the elevating elements, no plain error occurred.