Bryant Lamont Boyd (“Defendant”) appealed from his convictions for first degree burglary, second degree kidnapping, sexual battery, and attaining habitual felon status. The case was originally heard before this Court on 10 March 2011. See State v. Boyd,_N.C. App. _, _, 714 S.E.2d 466, 468 (2011). Defendant alleged the trial court erred by (1) instructing the jury on a theory of second degree kidnapping that was not charged in the indictment or supported by evidence; (2) instructing the jury on a theory of sexual battery Defendant claims was unsupported by evidence; (3) deviating from the pattern jury instructions on the first degree burglary charge; (4) overruling Defendant’s objection to, and failing to intervene ex mero mo tu during, the State’s closing argument; (5) allowing Defendant to be shackled in view of the jury during the habitual felon stage of the trial; and (6) permitting the introduction of evidence in the habitual felon phase that Defendant claims was irrelevant and impermissibly prejudicial.
This Court found no error in part, granted a new trial in part, vacated in part, and remanded. Id. at_, 714 S.E.2d at 476. We found no error on issues two through five above but found error with the trial court’s jury instructions on second degree kidnapping (though we did not apply plain error review). Id. at_, 714 S.E.2d at 469. Accordingly, we vacated Defendant’s conviction for kidnapping and remanded for a new trial. Id. Because the kidnapping conviction was one of the predicate felonies for Defendant’s habitual felon conviction, this Court also vacated and remanded that judgment. Id. Accordingly, we did not reach Defendant’s last argument on the habitual felon conviction. Id.
I. Facts and Procedural Background
We adopt the facts and procedural background provided in Boyd, _N.C. App. at_, 714 S.E.2d at 469—70.
II. Standard of Review
Because Defendant did not object to the instructional issue at trial and pursuant to our Supreme Court’s direction on remand, Defendant is limited to plain error review. See N.C. R. App. P. 10(a)(2) (“A party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires____”); see also State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996) (Our Supreme Court “has elected to review unpreserved issues for plain error when they involve either (1) errors in the judge’s instructions to the jury, or (2) rulings on the admissibility of evidence.”) To show plain error,
a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error “had a probable impact on the jury’s finding that the defendant was guilty.” Moreover, because plain error is to be “applied cautiously and only in the exceptional case,” the error will often be one that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”
Lawrence, _N.C. at_, 723 S.E.2d at 334 (internal citations omitted) (alteration in original).
Defendant argues the trial court erroneously instructed the jury with respect to the second degree kidnapping charge. Defendant specifically contends the trial court erred by instructing the jury on a theory of second degree kidnapping (removal) that was unsupported by the evidence presented at trial and not charged in the indictment. “[Arguments] challenging the trial court’s decisions regarding jury instructions are reviewed de novo, by this Court.” State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009).
Before applying plain error analysis to jury instructions, “it is necessary to determine whether the instruction complained of constitutes error.” State v. Cummings, 361 N.C. 438, 470, 648 S.E.2d 788, 807 (2007), cert. denied, 552 U.S. 1319 (2008). “The prime purpose of a court’s charge to the jury is the clarification of issues, the elimination of extraneous matters, and a declaration and an application of the law arising on the evidence.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973), cert. denied, 418 U.S. 905 (1974). “[A] trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial.” Id.
Here, the indictment charged Defendant with second degree kidnapping “by unlawfully confining and restraining her without her consent and for the purpose of terrorizing her.” The trial court defined second degree kidnapping in its jury charge as “unlawfully confining a person and/or restraining a person and that person did not consent to this confinement and/or restraint and that this was for the purpose of terrorizing that person.” However, in charging the jury on the specifics of second degree kidnapping as they applied to the case at hand, the trial court instructed the jury as follows, including “removal” as a theory on which to convict Defendant:
For you to find the defendant guilty of [second degree kidnapping], the State must prove three things beyond a reasonable doubt: First, that the defendant unlawfully confined the person— that is, imprisoned her within a given area; restrained a person, that is, restricted her freedom of movement; or removed a person from one place to another — second, that the person did not consent — and, as instructed, consent obtained by fraud or fear is not actual consent; and third, that the defendant did so for the purpose of terrorizing that person.
The State argues the inclusion of “removal” as a theory on which to convict Defendant is not error because this theory is supported by ■the evidence. We disagree and adopt our analysis in Boyd on this issue:
In support of this assertion, the State points to two portions of [the victim’s] testimony in which she describes Defendant forcing her to sit on his lap in a nearby chair. The State argues this constitutes sufficient evidence of removal, and therefore Defendant’s argument is factually deficient. We find the State’s argument unpersuasive. It is unclear how Defendant “forced” [the victim] to accompany him to the chair. And even assuming there is sufficient evidence of actual or constructive force, we conclude the asportation in this case was insufficient to constitute removal.
We acknowledge that there is no particular requirement that a defendant move a victim a certain distance in order to support a charge of kidnapping under a theory of removal, and our Supreme Court has specifically rejected the notion that removal must be “substantial.” See State v. Fulcher, 294 N.C. 503, 522-23, 243 S.E.2d 338, 351 (1978) (“[I]t was clearly the intent of the Legislature to make resort to a tape measure . . . unnecessary in determining whether the crime of kidnapping has been committed.”). Therefore, the State is correct in citing State v. Owen, 24 N.C. App. 598, 211 S.E.2d 830 (1975), for the proposition that moving a victim a short distance could constitute kidnapping in a proper case. This, however, is not such a case.
We do not discount the notion that evidence of removal could be present in a case where a victim was moved a distance equivalent to the space between where [the victim] was standing and the chair. However, we cannot conclude that the evidence presented at trial, or any fair inference stemming therefrom, suggests [the victim] was “removed” in this case. According to her own testimony, the entirety of [the victim’s] encounter with Defendant occurred within the confines of her living room, and certainly evidence was presented as to Defendant confining and restraining her. Defendant attempted to talk [the victim] into accompanying him to the bedroom, but she refused. Interpreting [the victim’s] testimony as supporting the assertion Defendant “removed” her is not plausible.
This conclusion is consistent with this Court’s recent decisions in the home invasion context. We have recently held that a kidnapPage 165ping victim may be “removed” from one area of their home to another. See, e.g., State v. Mangmn, 158 N.C. App. 187, 195, 580 S.E.2d 750, 755 (2003) (evidence tending to show a rape victim was forced down a hallway from one room to another was sufficient asportation to support a conviction for second-degree kidnapping); see also State v. Blizzard, 169 N.C. App. 285, 291, 610 S.E.2d 245, 250 (2005) (“[Defendant's forcible movement of the victim from the front of her home to the bedroom was a sufficient asportation to support kidnapping ....”). But these cases are distinguishable from the matter at bar. Both Mangum and Blizzard involved a victim being “removed” from one section of their home to another. Here, however, [the victim] testified Defendant made her sit on his lap in a chair in the same room, merely a few feet from where she was standing. We hold that, under these facts, where the victim was moved a short distance of several feet, and was not transported from one room to another, the victim was not “removed” within the meaning of our kidnapping statute.
Boyd,_N.C. App. at__, 714 S.E.2d at 471-72 (alteration within quotation marks in original). In the absence of any evidence of removal, we hold the presence of the instruction regarding removal provided the jury an illegitimate mode of conviction and constitutes error.
We next consider whether the trial court’s error in instructing the jury on a theory not supported by the evidence rises to the level of plain error where the instruction also included alternate theories, which Defendant does not assert were unsupported by the evidence.
Looking only to Lawrence for guidance in this case, the dissent would hold Defendant has not shown plain error. Although Lawrence analyzes well the application of plain error review to jury instructions, it does not address the situation at hand: where several alternative theories are submitted to a jury but one of those theories is not supported by the evidence. In Lawrence, the defendant was charged with two counts of attempted robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon, amongst other charges.__N.C. App. at_, 723 S.E.2d at 329. The trial court correctly instructed the jury on the elements of attempted robbery with a dangerous weapon, including the elements that the defendant possessed a firearm and intended to use it to “ ‘endanger or threaten the life of [the victim].’ ” Id. (alteration in original). However, the trial court, in its charge on conspiracy to commit robbery with a dangerous weapon, erroneously omitted the element that the weapon “must have been used to endanger or threaten the life of the victim.” Id. Our
Here, the trial court erred by instructing the jury on the theory of removal for Defendant’s second degree kidnapping charge. However, this case is distinct from Lawrence because there is zero evidence (much less “overwhelming and uncontroverted evidence”) that Defendant “removed” the victim. Therefore, although we apply the plain error standard set forth by our Supreme Court in Lawrence, we look to other more analogous precedent to determine if plain error has occurred in this case.
“It is a well-established rule in [North Carolina] that it is error, generally prejudicial, for the trial judge to permit a jury to convict upon some abstract theory not supported by the bill of indictment.” State v. Tucker, 317 N.C. 532, 537-38, 346 S.E.2d 417, 420 (1986) (finding plain error where the State’s evidence supported the trial court’s jury instruction but the indictment did not) (quotation marks and citation omitted). Going one step beyond Tucker, our Supreme Court held in Porter that “[w]here jury instructions are given without supporting evidence, a new trial is required.” State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995). Moreover, when the trial court instructs the jury on alternate theories for conviction, one that is supported by the evidence and one that is not, such an error requires a new trial because “ ‘it cannot be discerned from the record upon which theory or theories the jury relied in arriving at its verdict[.]’ ” State v. Johnson, 183 N.C. App. 576, 583, 646 S.E.2d 123, 128 (2007) (finding plain error and granting the defendant a new trial for second degree kidnapping because the trial court instructed the jury on alternative theories, one that was supported by the evidence and one that was not) (quoting State v. Hughes, 114 N.C. App. 742, 746, 443 S.E.2d 76, 79, disc. rev. denied, 337 N.C. 697, 448 S.E.2d 536 (1994)).
IV. Conclusion
For the foregoing reasons, Defendant is entitled to a
New trial.