# State v. Brown

> Supreme Court of North Carolina · November 6, 1984 · 312 N.C. 237

URL: https://www.frixlaw.com/law-library/cases/9560040

## Case

- **Full name:** State of North Carolina v. Lester Lee Brown
- **Court:** Supreme Court of North Carolina
- **Decided:** November 6, 1984
- **Citations:** 312 N.C. 237; 321 S.E.2d 856; 1984 N.C. LEXIS 1796
- **Precedential status:** Published
- **Opinion:** Dissent by Exum
- **Judges:** Branch, Exum
- **Cited by:** 61 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9560040

## How later opinions describe it (automated extraction)

- finding error where the judge "instructed the jury that to convict of first-degree kidnapping they must find that defendant 'sexually assaulted' the victim, rather than that he failed to release her in a safe place" as the indictment charged
- holding that when the trial court charged the jury on an additional purpose for kidnapping not listed in the indictment and the State presented no evidence on such theory, the jury instructions constituted plain error
- stating that vaginal intercourse includes the " slightest penetration of the female sex organ by the male sex organ"
- holding that plain error exists where a judge’s instructions permit the jury “to predicate guilt on theories of the crime which were not charged in the bill of indictment”

## Opinion text

Justice Exum
dissenting in part.
I dissent from! so much of the majority decision which holds that defendant was not entitled to an instruction on the lesser included offense of attempted rape. The majority correctly states the law and the evidence bearing on this issue. The majority errs, however, in concluding that the victim’s testimony is not equivocal on the question of penetration. To me, her testimony on this *251 issue is the epitome of equivocation. It is enough to carry the issue to the jury; but it leaves the issue in enough doubt that the jury should have been permitted to consider as an alternative verdict defendant’s guilt of attempted rape on the theory that there was, in fact, no penetration.
I, therefore, vote for a new trial in the rape case for failure of the trial court to submit the lesser included offense of attempted rape.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9560040. Public record. Not legal advice.