Jury Instruction Error on the Elements of Rape
In State v. Williams, 318 N.C. 624, 628, 350 S.E.2d 353, 356 (1986), the Supreme Court held that a "fatal variance" existed when the indictment alleged the elements of rape set out in N.C. Gen. Stat. 14-27.2(a)(2), while the trial court instructed the jury regarding the elements set out in N.C. Gen. Stat. 14-27.2(a)(1). Id. at 631, 350 S.E.2d at 357.
The Court held that the instructions constituted fundamental error that required reversal. Id. See also id. at 629, 350 S.E.2d at 356 ("We hold that the jury instructions were more than erroneous; they were a basic violation of due process.").