State v. Stokes, 367 N.C. 474, 756 S.E.2d 32 (Apr. 11, 2014)

The court reversed and remanded the decision below, State v. Stokes, 227 N.C. App. 649 (Jun. 4, 2013) (vacating the defendant’s conviction for second-degree kidnapping on grounds that the evidence was insufficient to establish removal when during a robbery the defendant ordered the clerk to the back of the store but the clerk refused). The court held that the court of appeals erred by failing to consider whether the State presented sufficient evidence to support a conviction of attempted second-degree kidnapping. The court went on to find that the evidence supported conviction of the lesser offense. The court rejected the defendant’s argument that it could not consider whether the evidence was sufficient to establish the lesser offense because the State had not argued for that result on appeal, stating: “While we agree it would be better practice for the State to present such an alternative argument, we have not, however, historically imposed this requirement.” It continued:

When acting as an appellee, the State should bring alternative arguments to the appellate court’s attention, and we strongly encourage the State to do so. Nonetheless, we are bound to follow our long-standing, consistent precedent of acting ex mero motu to recognize a verdict of guilty of a crime based upon insufficient evidence as a verdict of guilty of a lesser included offense. Hence, the Court of Appeals incorrectly refused to consider whether defendant’s actions constituted attempted second-degree kidnapping.