State v. Allen

Defendant appeals his convictions for escape in the first degree (Counts IV and V), kidnapping in the first degree (Counts VI and VII) and kidnapping in the second degree (Counts VIII through XI). We have considered all of his assignments of error, only one of which has merit.

With respect to the kidnapping in the first degree counts (VI and VII), the trial court instructed the jury that it could not consider the lesser included offense of kidnapping in the second degree unless it first found defendant not guilty of kidnapping in the first degree. The state concedes that that instruction was…