dissenting in part and concurring in part.
The majority has concluded that the trial court’s amendment of defendant’s indictment substantially altered the charge against him and therefore vacated defendant’s kidnapping conviction and granted him a new trial on that charge. Because I disagree with the majority’s holding I respectfully dissent on this issue, but agree with the majority that the issue of ineffective assistance of counsel is not properly before this Court.
In this case, the original bill of indictment alleged that:
[O]n or about and between the 26th day of November, 2004, and the 27th day of November, 2004, in Mecklenburg County, [defendant] did unlawfully, willfully and feloniously kidnap Freda , a person who had attained the age of sixteen (16) years, by unlawfully confining her, restraining her, and removing her from one place to another, without her consent, and for the purpose of facilitating the commission of a felony. Freda . . . was seriously injured.
The last sentence of the indictment alleged that defendant committed a first degree kidnapping. See N.C. Gen. Stat. § 14-39(b) (2005) (defining one type of first degree kidnapping as a kidnapping in which the victim “had been seriously injured”). The language regarding “[facilitating the commission of a[] felony” alleged that defendant committed a second degree kidnapping. N.C. Gen. Stat. § 14-39(a)(2) and (b).
Before the jury was selected, the State announced in open court that insofar as the kidnapping indictment was concerned, it would only be proceeding on the theory of second degree kidnapping. At the close of the evidence, the judge amended the indictment to conform with the State’s charge of second degree kidnapping. Thus, the last sentence of the indictment was stricken. The next to last sentence was amended to reflect the particular felony with which the State presented evidence — intent to inflict serious injury. Accordingly, that sentence read “confining, restraining her, and removing her from one place to the other without her consent for the purpose of facilitating inflicting serious injury.” Thus, the only charge submitted to the jury relating to the alleged kidnapping was one of second degree.
Under N.C. Gen. Stat. § 15A-923(e) (2005), “[a] bill of indictment may not be amended.” Our Supreme Court has interpreted this language “to mean a bill of indictment may not be amended in a manner that substantially alters the charged offense.” State v. Silas, 360 N.C. *486377, 380, 627 S.E.2d 604, 606 (2006). To determine whether an amendment constitutes a substantial alteration the reviewing court “consider[s] the multiple purposes served by indictments, the primary one being ‘ “to enable the accused to prepare for trial.” ’ ” Silas, 360 N.C. at 380, 627 S.E.2d at 606 (citations omitted).
Defendant contends that by changing the purpose of the alleged kidnapping, the State substantially altered the indictment, to the detriment of this ability to prepare for trial. The State argues that the amendment merely reflected which of the two offenses, first degree or second degree, listed in the original indictment the State chose to pursue. At trial, the State chose to pursue the lesser included second degree offense.
In State v. Bailey, 97 N.C. App. 472, 389 S.E.2d 131 (1990), this Court found a substantial variance and ordered a new trial on the first degree kidnapping charge because “the trial court instructed the jury on serious bodily injury . . . while the indictment alleged as the basis for first-degree kidnapping that the victim was not released in a safe place.” Id. at 478, 389 S.E.2d at 134. Similarly, our Supreme Court has granted a new trial where the defendant’s indictment charged him with first degree kidnapping for failure to release the victim in a safe place under N.C. Gen. Stat. § 14-39(b) because the trial court instructed that “the jury must find that [defendant] ‘removed, restrained and confined’ the victim ‘for the purpose of terrorizing’ her, a theory under N.C.G.S. § 14-39(a)(3) totally distinct from the theory alleged in the indictment under (a)(2)[.]” State v. Brown, 312 N.C. 237, 247, 321 S.E.2d 856, 862 (1984).
Both Bailey and Brown, however, are distinguishable from the case at bar. In this case, the State proceeded on a theory of second degree kidnapping that was included in the original bill of indictment, This is not a case where the trial court instructed on a theory of kidnapping that was “totally distinct from the theories] alleged in the indictment[.]” See id. Instead, the initial indictment alleged that the victim was “seriously injured.” Accordingly, when the trial court amended the indictment to read, “for the purpose of facilitating inflicting serious injury” there was not a substantial alteration of the original indictment because the first indictment contained an allegation of serious injury. See State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986) (“[t]he indictment in a kidnapping case must allege the purpose or purposes upon which the State intends to rely, and the State is restricted at trial to proving the purposes alleged in the indictment”).
*487In Silas, the Supreme Court held that “[i]f the State seeks an indictment which contains specific allegations of the intended felony, the State may not later amend the indictment to alter such allegations.” Silas, 360 N.C. at 383, 627 S.E.2d at 608. Such is not the case here. In this case, the State did not allege a specific felony. Instead, the portion of the indictment relating to the second degree charge merely stated that defendant intended to commit a felony within the course of the kidnapping. When the indictment was amended at the end of the trial it stated more specifically the felony (intent to inflict serious injury) of which the State presented evidence.
Additionally, there is no requirement that an indictment contain specific allegations that the defendant intended to commit a specific felony. Id. Although the Silas Court was addressing an amendment of an indictment for felonious breaking or entering, I would apply the same reasoning to this case. See State v. Freeman, 314 N.C. 432, 435, 333 S.E.2d 743, 745 (1985) (second degree kidnapping indictments need not allege which specific felony the defendant intended to commit; a general allegation that defendant intended to commit any felony is sufficient). In the instant case, the original indictment met the standard set out in Silas by alleging that defendant committed a felony in the course of confining, restraining, or removing the victim.2 See Silas, 360 N.C. at 383, 627 S.E.2d at 608. Thus, defendant could rely on the allegations in the original indictment when preparing for trial because it contained an allegation that defendant intended to commit a felony. Silas, 360 N.C. at 380, 627 S.E.2d at 606 (the primary purpose of an indictment is to allow the accused to prepare for trial).
There being no need to amend the indictment under either Silas or Freeman, I fail to see how defendant can claim that he was prejudiced when the jury was submitted instructions regarding an intent to inflict serious injury. If anything, such an amendment and instruction could only aid defendant as the jury was thus limited to finding that specific felony rather than being able to find an intent to commit any felony.
For the foregoing reasons, I would hold that the amendment to defendant’s indictment did not constitute a substantial alteration to the original indictment and would therefore find no error as to this issue.
. In fact, under Freeman, there was no need to amend the indictment. The general allegation that defendant attempted to commit a felony in the original indictment would have been sufficient.