An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-640


Filed: 6 April 2004


         v.                        Onslow County
                                Nos. 92 CRS 15141-15143

    On Writ of Certiorari from judgments entered 26 April 1993 by Judge James R. Strickland in Onslow County Superior Court. Heard in the Court of Appeals 15 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Angel E. Gray, for the State.

    The Wright Law Firm, by Ernest J. Wright, for defendant appellant.

    McCULLOUGH, Judge.

    Defendant pled guilty to second degree rape, first degree kidnapping and robbery with a dangerous weapon. The trial court made separate findings of aggravating and mitigating factors for each offense and determined that the aggravating factors outweighed the mitigating factors for each offense. The trial court entered separate judgments for each offense and sentenced defendant to consecutive terms of 40 years for the rape conviction (92 CRS 15141), 35 years for the kidnapping conviction (92 CRS 15142) and 40 years for the robbery conviction (92 CRS 15143). Petitioner filed a petition for writ of certiorari seeking a belated appeal on 1 October 2002. This Court allowed defendant's petition to reviewthe judgments entered, but limited defendant's appeal to those issues he could have raised on his original appeal of right in accordance with N.C. Gen. Stat. § 15A-1444 (2003).
    The summary of evidence forming the factual basis for the plea included, in part, the following. At approximately 11:30 p.m. on 26 August 1992, the victim was closing up the Dash-N convenience store in Jacksonville, North Carolina. As she unlocked the front door and stepped outside, the victim observed defendant “coming at her from around the corner of the business.” She also saw codefendants Hale and Dupleissis following behind him. The victim went back into the store and attempted to lock the door behind her, but the men pushed their way inside. Defendant told the victim to “open the safe or he would blow her [f---ing] head off.” The victim told defendant she could not open the safe. The store alarm went off and defendant told the victim to turn it off, which she did.
    Defendant then pushed her out of the store and into a vehicle the victim had borrowed from a friend. The three men entered the vehicle with her. Defendant told the victim to drive and she went to a high school. Defendant told the victim to pull around to the baseball field behind the school. When she stopped the vehicle at the field, codefendant Hale took the victim to the dugout and raped her. Codefendant Hale brought the victim back to the vehicle. Defendant then raped the victim in the backseat of the vehicle while the other codefendants stood outside the vehicle. The two codefendants entered the vehicle, with one of them in the driver'sseat. They drove by many convenience stores and then back to the high school where codefendant Hale again raped the victim in the dugout. The victim was placed back in the vehicle and they started driving down Western Boulevard. At approximately 2:00 a.m., the men let her out of the vehicle at the end of Gum Branch Road. The victim eventually flagged down an Onslow County Sheriff's Deputy. The vehicle was recovered in a parking lot by a Holiday Inn.
    Defendant's three arguments concern the trial court's findings of aggravation in each of the three offenses. Defendant first contends the trial court erred in imposing aggravating factor 2A which states, “The offense was committed for the purpose of avoiding or preventing lawful arrest[]” in sentencing him for the second-degree rape conviction (92 CRS 15141).
    Contrary to defendant's assertion, the trial court did not find factor 2A as an aggravating factor. Rather, the trial court found “9.a. The defendant was armed with a deadly weapon at the time of the crime.” In entering sentence for the rape conviction, the trial court stated,
        the Court finds the following factors in aggravation and mitigation as follows: Aggravating factors: . . . 2A, that the defendant was armed with a deadly weapon at the time.

Although the court misspoke in open court by stating the incorrect number of the aggravating factor, the trial court stated the correct substance of the factor. More importantly, the written “Felony Judgment Findings of Factors in Aggravation and Mitigation of Punishment” form entered in file number 92 CRS 15141 shows thatthe trial court found aggravating factors: 1.a; 9.a.; 12; and 15. Accordingly, defendant's argument is without merit.
    Defendant next contends the trial court erred in finding the aggravating factor that the “victim was not released by the defendant in a safe place” in sentencing him to the first-degree kidnapping (92 CRS 15142). Defendant argues “there is absolutely no evidence in the record that the victim was released in an unsafe place.” On the contrary, defendant left the victim on the side of the highway at 2:00 o'clock in the morning. We nonetheless conclude the trial court erred in finding the aggravating factor that the “victim was not released by the defendant in a safe place” because the court also used this evidence to prove an element of first- degree kidnapping.
    “Evidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation, and the same item of evidence shall not be used to prove more than one factor in aggravation." N.C. Gen. Stat. § 15A-1340.16(d) (2003); see State v. Holt, 144 N.C. App. 112, 547 S.E.2d 148 (2001), disc. review improvidently allowed, 355 N.C. 347, 560 S.E.2d 793 (2002). In North Carolina, a kidnapping is elevated to a first-degree offense if the person kidnapped was either released in an unsafe place or had been seriously injured or sexually assaulted. N.C. Gen. Stat. § 14-39(b). “[A] defendant [cannot] be convicted of both first degree kidnapping and a sexual assault that raised the kidnapping to first degree[;]" otherwise, a defendant could be subjected to "double punishment." State v. Freeland, 316 N.C. 13, 23, 340S.E.2d 35, 40 (1986).
    Applying these principles to this case, defendant here pled guilty to second-degree rape, therefore, the sexual assault could not be used to elevate the kidnapping to first-degree in this case. Consequently, to satisfy the first-degree kidnapping requirements, it was necessary to establish that the “defendant released the victim in an unsafe place.” The trial court then used the evidence of the victim's release to find the aggravating factor “[t]hat the victim was not released by the defendant in a safe place.” This was error. Accordingly, we remand defendant's first-degree kidnapping conviction for resentencing.
    Defendant finally argues the trial court erred by finding as an aggravating factor that he induced others to participate in the robbery with a dangerous weapon offense. We disagree.
    The trial court's finding of an aggravating factor must be supported by "sufficient evidence to allow a reasonable judge to find its existence by a preponderance of the evidence." State v. Hayes, 102 N.C. App. 777, 781, 404 S.E.2d 12, 15 (1991). "When a convicted felon is given a sentence in excess of the presumptive range, he may appeal as a matter of right, and the only question before the appellate court on such an appeal is whether the sentence is supported by evidence introduced at trial and the sentencing hearing." State v. Weary, 124 N.C. App. 754, 759, 479 S.E.2d 28, 32 (1996). In State v. Lattimore, this Court held that the focus of this aggravating factor "is not on the role of the 'participants' in the crime, but on the role of the defendant ininducing others to participate or in assuming a position of leadership." State v. Lattimore, 310 N.C. 295, 299, 311 S.E.2d 876, 879 (1984).
    Here, the evidence showed that defendant, carrying a gun, approached the victim. Codefendant Hale, a fifteen-year-old minor, and another codefendant followed behind defendant. Once inside, defendant told the victim to open the safe or he would “blow her [f---ing] head off.” The alarm sounded and defendant told the victim to turn it off. Defendant then pushed the victim out of the store, into the victim's borrowed vehicle and ordered her to drive. Taking these facts as true, we believe this evidence does support the court's finding that defendant induced others to participate in the offense. Thus, the trial court did not err in finding this aggravating factor.
    No error in 92 CRS 15141 and 92 CRS 15143.
    Remand for resentencing in 92 CRS 15142 first degree kidnapping.
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

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