State v. Wilson

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-1031

Filed 31 December 2024

Beaufort County, Nos. 17CRS52280-83, 17CRS52285, 22CRS804

STATE OF NORTH CAROLINA,

v.

JERRY DARRELL WILSON, Defendant.

Appeal by defendant from judgment entered 2 December 2022 by Judge Alma

L. Hinton in Superior Court, Beaufort County. Heard in the Court of Appeals 14 May

2024.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Justin

Isaac Eason, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Emily

Holmes Davis, for defendant-appellant.

STROUD, Judge.

Defendant appeals his conviction for felony second-degree kidnapping entered

after a jury found him guilty of kidnapping and four counts of felony indecent liberties

with a child. Defendant argues that the trial court plainly erred in its jury

instructions and he is entitled to a new trial on the kidnapping charge. The State

concedes error in the jury instructions but contends the instructions did not prejudice

Defendant. Because the trial court instructed the jury as to kidnapping theories not

included in the indictment and Defendant has demonstrated this instructional error

rises to the level of plain error, we vacate Defendant’s second-degree kidnapping

STATE V. WILSON

Opinion of the Court

conviction and remand for a new trial on the kidnapping charge only.

I. Factual and Procedural Background

In December 2017, the Beaufort County Sheriff’s Office began investigating

allegations of sexual misconduct occurring over a period of years by Defendant

against Claire,1 his step-granddaughter. The allegations centered around a pattern

of inappropriate sexual behavior during the years when Claire was ages ten to

fourteen. The investigation began in 2017 because Claire had not previously

disclosed the abuse for fear of disrupting her family life. Ultimately, Defendant was

charged with many sexual offenses committed over a period of years against three

females, two of whom were minors. As to Claire, he was charged with four counts of

sexual servitude of a child victim in violation of North Carolina General Statute

Section 14-43.13; five counts of indecent liberties with a child; statutory first-degree

sex offense with a child by an adult; one count of first-degree kidnapping by unlawful

confinement “for the purpose of subjecting and maintaining her for sexual

servitude[;]” and two counts of sex offense in a parental role. Fourteen charges were

submitted to the jury; all but one of these charges related to offenses involving Claire.

At trial, Claire testified about many occasions Defendant had sexually abused

her in various ways over a period of several years. We will not discuss most of this

evidence but will limit our discussion to the evidence relevant to the issue on appeal

1 We have used a pseudonym to protect the identity of Claire.

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Opinion of the Court

as to second-degree kidnapping based on a theory of sexual servitude in 2015. The

evidence tended to show that in 2015, Defendant entered Claire’s bathroom while she

was changing and told her she “couldn’t come out of the bathroom until [she] took

pictures of . . . [her] breasts.” Claire testified Defendant gave her his phone to take

the pictures and stood outside the locked bathroom door for about 25 or 30 minutes

until she took them. Claire testified she felt “[f]orced” to take the pictures and that

“I did what he told me to do so I could come out, but on the inside I wanted to stay in

because I was so ashamed.” Claire’s mother testified she had suffered similar abuse

when, at one point, her “dad wanted a picture of [her] breasts and . . . got it.” She

testified that he took her into a bedroom, closed and locked the door, stood between

her and the door, and made her hold up her shirt so he could take a picture. A

Beaufort County detective also testified to the results of his investigations that

supported these claims. Defendant testified in his own defense but offered no further

evidence outside of certain voir dire proceedings.

The trial court instructed the jury as to the first-degree kidnapping charge

based on “serious injury” with a lesser included offense of second-degree kidnapping

based on a theory of involuntary servitude, not sexual servitude as alleged in the

indictment. In the closing arguments, the State argued Defendant should be

convicted of kidnapping based on involuntary servitude, arguing that “[t]he

involuntary servitude is making her take the photograph of herself. And you’ll hear

the Judge define that for you. But having her take a photograph of herself, a sexual

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Opinion of the Court

photograph, a photograph she did not want to take, qualifies as involuntary

servitude.” The trial court instructed the jury to find Defendant guilty of second-

degree kidnapping if it determined in relevant part that he did not “seriously injure”

Claire but kidnapped her “for the purpose of holding . . . [her] in involuntary

servitude[.]” Defendant did not object to either the State’s argument or the trial

court’s instruction as to “involuntary servitude.”

The jury found Defendant guilty of one count of second-degree kidnapping and

five counts of indecent liberties. Defendant also pled guilty to one additional count of

indecent liberties.2 Relevant to the issues on appeal, the jury found Defendant “not

guilty of sexual servitude” for the “alleged dates of 3/1/15 through 6/1/15” and “guilty

of indecent liberties with a child” for the same alleged dates. The jury also found

Defendant guilty of second-degree kidnapping for the “alleged dates of 3/01/15

through 6/01/15.” Defendant gave oral notice of appeal from the judgment.

II. Jurisdiction

Under North Carolina General Statute Sections 7A-27 and 15A-1444, this

Court has jurisdiction to hear Defendant’s appeal of the trial court’s entry of final

judgment for his convictions. N.C. Gen. Stat. § 7A-27(b)(1) (2023) (superior court’s

final judgment); N.C. Gen. Stat. § 15A-1444(a)(1) (2023) (pled not guilty but found

2 Fourteen charges were submitted to the jury and Defendant was convicted of six charges. Five of

the counts of indecent liberties involved Claire; one involved another victim. The charges of indecent

liberties arose from various incidents when Defendant touched Claire on her breasts. Only one of the

charges for which Defendant was convicted, second-degree kidnapping, is at issue in this appeal.

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Opinion of the Court

guilty).

III. Standard of Review

Defendant did not object to the jury instructions at trial, so review on appeal

is limited to plain error. A defendant may appeal “an issue . . . not preserved by

objection noted at trial” only if he “specifically and distinctly contend[s]” that the

“judicial action questioned . . . amount[s] to plain error.” N.C. R. App. P. 10(a)(4).

Defendant bears the burden of showing “a fundamental error . . . at trial” that so

“prejudice[d]” him as to have “a probable impact on the jury’s” guilty verdict. State

v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). Our Supreme Court has

further discussed the “probable impact” prong as “meaning that absent the error, the

jury probably would have returned a different verdict.” State v. Reber, 386 N.C. 153,

158, 900 S.E.2d 781, 786 (2024). Generally, the error should “be one that seriously

affects the fairness, integrity or public reputation of judicial proceedings[.]” Id.

(quotation marks and brackets omitted).

We review the jury instructions in their entirety to determine if the jury may

have been misled or misinformed about the applicable law:

The charge of the court must be read as a whole, in the

same connected way that the judge is supposed to have

intended it and the jury to have considered it. It will be

construed contextually, and isolated portions will not be

held prejudicial when the charge as whole is correct. If the

charge presents the law fairly and clearly to the jury, the

fact that some expressions, standing alone, might be

considered erroneous will afford no ground for reversal.

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State v. Tadeja, 191 N.C. App. 439, 448, 664 S.E.2d 402, 409-10 (2008) (citations

omitted).

IV. Jury Instructions on Kidnapping

On appeal, Defendant contends the trial court plainly erred by instructing the

jury that it could convict him of the kidnapping charge based on a theory not alleged

in the indictment. The indictment alleged first-degree kidnapping in violation of

North Carolina General Statute Section 14-39 based on sexual servitude, but the trial

court instructed the jury on first-degree kidnapping based on involuntary servitude,

a different element of the crime of kidnapping as defined by North Carolina General

Statute Section 14-43.12. See N.C. Gen. Stat. § 14-39 (2023); N.C. Gen. Stat. § 14-

43.12 (2023). The indictment alleged Defendant had kidnapped Claire “by unlawfully

confining her . . . without the consent of [Claire’s] parent or legal guardian, and for

the purpose of subjecting and maintaining her for sexual servitude. [Claire] was

sexually assaulted.”

The State “acknowledges that the trial court gave an instruction covering

involuntary servitude” and “[i]nsofar as the instructions given allowed the jury to

convict on grounds other than those charged in the indictment, they were error.”

Although the indictment was based on sexual servitude, the trial court instructed the

jury on kidnapping based on “holding the person in involuntary servitude, which is

the unlawful holding of a person against her will by coercion or intimidation for the

performance of labor.” The State notes that “there currently does not appear to be

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Opinion of the Court

any pattern jury instruction available for kidnapping for the purpose of sexual

servitude, so the trial court gave the only kidnapping instruction involving servitude.”

But the State contends that the erroneous jury instruction was not a “fundamental

error” and the jury probably would not have reached a different verdict but for this

instructional error.

We first note that the State’s claim that the pattern jury instructions do not

address sexual servitude is not entirely correct. It is true that North Carolina Pattern

Instruction Criminal 210.26, entitled “First Degree Kidnapping (involuntary

servitude) covering second degree kidnapping as a lesser included offense”

(capitalization altered), does not include an option as to sexual servitude; it includes

only involuntary servitude. N.C.P.I. Crim. 210.26. But other pattern jury

instructions do address the crime of sexual servitude and sexual servitude of a minor,

see N.C.P.I. Crim. 210.70 (“Sexual Servitude”) and 210.72 (“Sexual Servitude of a

Minor”), and the instructions refer to the statutes defining both involuntary servitude

and sexual servitude. And the trial court actually instructed the jury on the crime of

sexual servitude, based upon North Carolina Pattern Instruction 210.70, as four

counts of this offense were submitted to the jury. The kidnapping statute also refers

directly to North Carolina General Statute Section 14-43.13 for the definition of

“sexual servitude” and the same definition applies for both the crime of sexual

servitude and the element of sexual servitude regarding the kidnapping charge. See

N.C. Gen. Stat. § 14-39 (“Kidnapping”); N.C. Gen. Stat. § 14-43.13 (“Sexual

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Opinion of the Court

servitude”) (2023). The fact 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.

We also note that the absence of a particular instruction in the pattern

instructions is not an excuse to not give the correct legal instructions to the jury. As

our Supreme Court has noted, the pattern jury instructions direct that “all pattern

instructions should be carefully read and adaptations made, if necessary, before any

instruction is given to the jury.” State v. Walston, 367 N.C. 721, 732, 766 S.E.2d 312,

319 (2014) (citation and emphasis omitted). If the issues in a particular case call for

an instruction not addressed in the pattern instructions, the trial court must adapt

the instructions based upon the relevant law.

First, it is clear, as the State admits, the trial court erred in instructing the

jury as to a theory not alleged in the indictment. Defendant was not charged with

the crime of involuntary servitude in violation of North Carolina General Statute

Section 14-43.12 or with kidnapping for the purpose of involuntary servitude in

violation of North Carolina General Statute Section 14-39(a)(4). He was charged with

the crime of sexual servitude in violation of North Carolina General Statute Section

14-43.13 and with kidnapping for the purpose of sexual servitude based on North

Carolina General Statute Section 14-39(a)(6). These are two different crimes and

both are defined by statutes specifically referenced in the kidnapping statute. See

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Opinion of the Court

N.C. Gen. Stat. § 14-39 (“Kidnapping”).

Defendant was charged with the crime of kidnapping based on “sexual

servitude” under North Carolina General Statute Section 14-39. This statute defines

kidnapping:

(a) Any person who shall unlawfully confine,

restrain, or remove from one place to another, any other

person 16 years of age or over without the consent of such

person, or any other person under the age of 16 years

without the consent of a parent or legal custodian of such

person, shall be guilty of kidnapping if such confinement,

restraint or removal is for the purpose of:

....

(4) Holding such other person in involuntary

servitude in violation of G.S. 14-43.12.[3]

....

(6) Subjecting or maintaining such other person for

sexual servitude in violation of G.S. 14-43.13.

(b) There shall be two degrees of kidnapping as

defined by subsection (a). If the person kidnapped either

was not released by the defendant in a safe place or had

been seriously injured or sexually assaulted, the offense is

kidnapping in the first degree and is punishable as a Class

C felony. If the person kidnapped was released in a safe

place by the defendant and had not been seriously injured

or sexually assaulted, the offense is kidnapping in the

3 The crime of involuntary servitude is defined by North Carolina General Statute Section 14-43.12:

“a) A person commits the offense of involuntary servitude when that person knowingly and willfully

or in reckless disregard of the consequences of the action holds another in involuntary servitude.” N.C.

Gen. Stat. § 14-43.12 (2023).

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Opinion of the Court

second degree and is punishable as a Class E felony.

N.C. Gen. Stat. § 14-39 (emphasis added).

Although involuntary servitude is one of the potential bases for a conviction of

kidnapping, see id., Defendant was not indicted based on a theory of involuntary

servitude. We also note Defendant was convicted of second-degree kidnapping,

demonstrating the jury found Defendant was not guilty of committing “serious[ ]

injury” to Claire, based upon the trial court’s instructions, which did not instruct the

jury as to the option of sexual assault upon Claire as one of the elements of first-

degree kidnapping. The second-degree kidnapping conviction could be based only on

“involuntary servitude” under the jury instructions as given.

For purposes of crimes set forth in Chapter 14, Subchapter 3, Article 10a of the

General Statutes, “involuntary servitude” is defined as:

a. The performance of labor, whether or not for

compensation, or whether or not for the satisfaction of a

debt; and

b. By deception, coercion, or intimidation using violence or

the threat of violence or by any other means of coercion or

intimidation.

N.C. Gen. Stat. § 14-43.10(a)(3) (2023).

“Sexual servitude” is defined to include4:

a. Any sexual activity as defined in G.S. 14-190.13 for

4 The terms “coercion” and “deception” as used in the statute are also defined for purposes of Article

10(a) in North Carolina General Statute Section 14-43.10(a)(1) and (a)(2). See N.C. Gen. Stat. § 14-

43.10(a)(1) (2023); see also N.C. Gen. Stat. § 14-43.10(a)(2) (2023).

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Opinion of the Court

which anything of value is directly or indirectly given,

promised to, or received by any person, which conduct is

induced or obtained by coercion or deception or which

conduct is induced or obtained from a person under the age

of 18 years; or

b. Any sexual activity as defined in G.S. 14-190.13 that is

performed or provided by any person, which conduct is

induced or obtained by coercion or deception or which

conduct is induced or obtained from a person under the age

of 18 years.

N.C. Gen. Stat. § 14-43.10(a)(5) (2023).

The kidnapping statute specifically refers to other statutes that define both

“sexual servitude” and “involuntary servitude.” See N.C. Gen. Stat. § 14-39(a). North

Carolina General Statute Section 14-43.13 defines the crime of sexual servitude:

A person commits the offense of sexual servitude when that

person knowingly or in reckless disregard of the

consequences of the action subjects, maintains, patronizes,

solicits, or obtains another for the purposes of sexual

servitude.

N.C. Gen. Stat. § 14-43.13.

Defendant was charged with four counts of sexual servitude in violation of

North Carolina General Statute Section 14-43.13, including a count occurring in

2015, during the same dates as alleged for kidnapping based on sexual servitude, but

the jury found Defendant not guilty of all four counts of sexual servitude.

The jury found Defendant guilty of the lesser included offense of second-degree

kidnapping, although he was charged with first-degree kidnapping based upon

commission of a sexual assault. During the charge conference, the trial court and

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Opinion of the Court

counsel discussed which parentheticals in North Carolina Pattern Instruction 210.26

should be given to the jury. On the “fourth element” of the instruction on first-degree

kidnapping, the State requested that the trial court use “sexually assault.” We note

that sexual assault was the element specifically included in the indictment for the

first-degree kidnapping. But the trial court noted, based upon the evidence presented

at trial as to the 2015 incident, that “[t]he picture is not a sexual assault.”

Defendant’s counsel agreed that “this was related to the photograph incident and

there was no contact whatsoever.” The State then requested that the trial court

instruct as to the option of “serious injury,” arguing that Claire had a

serious injury that she sustained as a result and that she

still continues to suffer from today as a result of the sexual

abuse perpetuated on her by [Defendant]. . . . And so I

would argue to Your Honor based on that, that she has

been seriously injured based on that whole spectrum of

abuse that she suffered in taking the photographs, being

locked -- you know, locked in this room, forced to take

photographs of herself certainly . . . locked in the bathroom

for about 30 minutes and only when she took the

photographs was she released.

Based upon the years of sexual abuse, the State argued that Claire had

suffered a “pretty significant emotional injury” as indicated by the evidence of “her

cutting herself, being admitted to the hospital, seizures, therapy dog, about how this

has totally altered her self-worth, her body image, everything, and how it has

fractured her entire family of which she’s still, you know, suffering the effects today.”

Ultimately, the trial court decided to give the instruction as to first-degree

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Opinion of the Court

kidnapping based upon “serious injury,” although it would “not define seriously

injured,” and to instruct on the lesser-included offense of second-degree kidnapping

based upon “the purpose of involuntary servitude, which was the production of the

picture.”

The trial court instructed the jury on all the crimes charged. Several portions

of the instructions are relevant to the issues on appeal. First, the trial court’s

instruction on the charges of sexual servitude was based on North Carolina Pattern

Instruction 210.70. Although the jury found Defendant not guilty of all four charges

of sexual servitude, these instructions correctly define sexual servitude:

The defendant has been charged in 17-CRS-52280, 17-

CRS-52281, 17-CRS-52282 and 17-CRS-52283 with -- has

been charged with sexual servitude.

For you to find the defendant guilty of this offense, the

State must prove two things beyond a reasonable doubt:

First, that the defendant, by coercion of another person for

the purpose of any sexual activity for which anything of

value is directly or indirectly given or promised to any

person for the purpose of any sexual activity that is

performed or provided.

And second, that the defendant did so knowingly.

If you find from the evidence beyond a reasonable doubt

that on or about the alleged dates, the defendant

knowingly, by coercing another person for the purpose of

any sexual activity for which anything of value is directly

or indirectly given or promised to any person for the

purpose of sexual activity that is performed or provided it

would be your duty to return a verdict of guilty.

The trial court’s instruction on the charge of kidnapping was based on North

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Opinion of the Court

Carolina Pattern Instruction 210.26, which refers to involuntary servitude, not

sexual servitude; the trial court instructed the jury on the charge of first-degree

kidnapping as follows:

In 17-CRS-52285, the defendant has been charged with

first degree kidnapping.

For you to find the defendant guilty of this offense, the

State must prove four things beyond a reasonable doubt:

First, that the defendant unlawfully confined a person,

that is, imprisoned her within a given area.

Second, that the person had not reached her sixteenth

birthday and her parent did not consent to this

confinement. Consent obtained or induced by fraud or fear

is not consent.

Third, that the defendant did this for the purpose of

holding the person in involuntary servitude, which is the

unlawful holding of a person against her will by coercion or

intimidation for the performance of labor.

And fourth, that the person had been seriously injured.

If you find from the evidence beyond a reasonable doubt

that on or about the alleged date, the defendant unlawfully

confined a person and that the person had not reached her

sixteenth birthday and her parent did not consent to this

confinement and that this was for the purpose of holding

that person in involuntary servitude, and that the person

had been seriously injured, it would be your duty to return

a verdict of guilty of first degree kidnapping.

If you do not so find or have a reasonable doubt as to one

or more of these things, you would not return a verdict of

guilty of first degree kidnapping, you must determine

whether defendant is guilty of second degree kidnapping.

Second degree kidnapping differs from first degree

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Opinion of the Court

kidnapping in that it is -- it is unnecessary for the State to

prove that the person confined had been seriously injured.

If you find from the evidence beyond a reasonable doubt

that on or about the alleged date, the defendant unlawfully

confined a person and that the person had not reached her

sixteenth birthday and that her parent did not consent to

this and that this was for the purpose of holding that

person in involuntary servitude, it would be your duty to

return a verdict of guilty of second degree kidnapping.

Here, the trial court erred, as the State concedes, because it instructed the jury

as to “a theory under [14-39(a)] totally distinct from the theory alleged in the

indictment[.]” State v. Brown, 312 N.C. 237, 247, 321 S.E.2d 856, 862 (1984). The

indictment specified “sexual servitude” but instead of an instruction based upon the

indictment and the evidence presented, the jury was instructed upon a theory not

charged, involuntary servitude. In addition, the jury’s verdicts of not guilty as to the

specific charge of sexual servitude alleged for the same dates as the kidnapping

charge indicate it must have considered the “involuntary servitude” to be something

entirely different from “sexual servitude,” the crime for which Defendant was

indicted.

In Brown, our Supreme Court found plain error in jury instructions where the

defendant was convicted upon a theory not included in the indictment:

This Court has consistently held that it is error, generally

prejudicial, for the trial judge to permit a jury to convict

upon a theory not supported by the bill of indictment. State

v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980)[.]

Unlike the short-form indictments authorized for homicide

(N.C.Gen.Stat. § 15-144 (1983)) and rape (N.C.Gen.Stat. §

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Opinion of the Court

15-144.1 (1983)), an indictment charging first-degree

kidnapping must include information “regarding the

factual basis under which the State intends to proceed and,

under the authority of Taylor and cases cited therein the

State is limited to that factual basis at trial.” See also State

v. Jerrett, 309 N.C. 239, 307 S.E.2d 339 (1983) (indictment

for kidnapping will not support conviction unless all

elements of crime accurately and clearly alleged in

indictment).

312 N.C. at 248-49, 321 S.E.2d at 863 (emphasis in original) (citations omitted).

In accord with Brown and State v. Tucker, 317 N.C. 532, 346 S.E.2d 417 (1986),

the trial court plainly erred in instructing the jury on a theory not charged in the

indictment and Defendant has demonstrated that the instructional error may have

“tilted the scales and caused the jury to reach its verdict convicting . . . [D]efendant.”

Tucker, 317 N.C. at 539, 346 S.E.2d at 421 (citation and quotation marks omitted);

see also Brown, 312 N.C. at 248-49, 321 S.E.2d at 863. “Defendant must, therefore,

receive a new trial on the kidnapping charge for plain error in the jury instructions.”

Tucker, 317 N.C. at 540, 346 S.E.2d at 422. The trial court’s erroneous instruction

“had a probable impact on the jury’s finding of guilt” and “absent the error, the jury

probably would have returned a different verdict.” Lawrence, 365 N.C. at 518, 723

S.E.2d at 334 (emphasis omitted); Reber, 386 N.C. at 158, 900 S.E.2d at 786. Thus,

we conclude 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.

V. Conclusion

We conclude the trial court plainly erred in the jury instructions as to

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Opinion of the Court

kidnapping and for the reasons stated above, Defendant is entitled to a new trial on

the charge of first-degree kidnapping.

NEW TRIAL.

Judges CARPENTER and THOMPSON concur.

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