An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1668


Filed: 1 November 2005


v .                         Mecklenburg County
                            No. 03 CRS 224979
ROBERT DARNELL BRYANT             03 CRS 224951

    Appeal by defendant from judgments entered 17 September 2004 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 25 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.

    Ligon and Hinton, by Lemuel W. Hinton, for defendant- appellant.

    ELMORE, Judge.

    Robert Bryant (defendant) appeals from judgments entered on jury verdicts finding him guilty of robbery with a dangerous weapon and first-degree kidnapping. We find that his trial was free of prejudicial error.
    In the light most favorable to the State the evidence shows that on 11 May 2003 defendant, a former employee of Fuel Pizza, armed himself with a gun and pulled a pantyhose over his face before robbing his former employer's pizza establishment. Martin Davis, Augustine Baylon, and Alfa Sanchez were working that day along with several other employees. Davis, the general manager, went into the back of the store with Baylon. At that point, both men noticed defendant standing at the back door with a gun. Davisrecognized him as Robert Bryant, former assistant manager to the store, and although Baylon recognized him, he did not remember his name.
    Defendant demanded that Davis go to the front and get the money from the registers. He also ordered Baylon and Sanchez into to the store's walk-in cooler. Baylon complied, but Sanchez, who did not understand English that well, remained near the dishwasher where she had been. Davis retrieved the money from the registers in the front of the store while defendant remained just out of sight from anyone in the front. Defendant also commanded Davis to empty the money in the store's safe, which at that time contained three deposit bags of money. The safe was underneath the counter at the front, not visible to any customers. As Davis was complying with defendant's request, a customer approached the counter near where he was standing. Davis mouthed to the customer that the store was being robbed and the patron called the police on his cell phone.
    Just after his hurried communication with the customer, Davis turned around and defendant was gone, apparently having left through one of the back doors in which he entered. Davis chased defendant for a little ways before returning to the store. When he returned the police were already there and Alfa, who was still in the back, had let Baylon out of the cooler.
    The jury found defendant guilty of all charges. He appeals the judgments entered on those verdicts, arguing first that the State presented insufficient evidence of kidnapping, in particular kidnapping in the first degree. In order to prove kidnapping in the first degree, the State must prove that defendant “unlawfully confin[ed], restrain[ed], or remov[ed] from one place to another, any other person 16 years of age or over without the consent of such person, . . . for the purpose of . . . [f]acilitating the commission of any felony or facilitating flight of any person following the commission of a felony[.]” N.C. Gen. Stat. § 14- 39(a) (2003). The offense is kidnapping in the first degree if the State proves that the person kidnapped “was not released by the defendant in a safe place,” and second-degree kidnapping if the person was released in a safe place. N.C. Gen. Stat. § 14-39(b) (2003). Also, since defendant was charged with robbery and kidnapping arising out of the same course of conduct, our Supreme Court has held that the restraint, confinement, or removal element of kidnapping must be “separate and apart from that which is inherent in the commission of the other felony.” State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). In order to prove restraint separate and apart from that inherent in the robbery, the State must present evidence that the “necessary restraint for kidnapping exposed the victim to greater danger than that inherent in the armed robbery itself.” State v. Beatty, 347 N.C. 555, 559, 495 S.E.2d 367, 369-70 (1998) (internal quotations omitted).
    We determine that the State did indeed show substantial evidence of restraint beyond that necessary for the robbery itself, thus supporting submission of the kidnapping charge to the jury. There were three individuals in the back of the restaurant: Davis,Baylon, and Sanchez. In the light most favorable to the State, the evidence shows that only restraining or moving Davis was inherent in the robbery; he provided the necessary access to the safe. See State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981) (moving a clerk from one part of the store to another at knife point in order that the clerk can open a safe is restraint and removal inherent in the robbery). The fact that defendant successfully robbed and fled the store while Sanchez never moved from the position she was first in supports the determination that Baylon's confinement in the cooler was “separate and apart” from confinement inherent in the robbery. At no point did defendant attempt to take anything from Baylon, nor did defendant direct him to take anything from the store or the cooler. Defendant's confinement of a victim in a cooler “increased the victim's helplessness and vulnerability beyond what was necessary to enable him . . . to rob the restaurant.” Beatty, 347 N.C. at 559, 495 S.E.2d at 370.
    We further find that the State presented substantial evidence on the issue of whether the walk-in cooler was a safe place, thus supporting kidnapping in the first degree. Viewing the record evidence in the light most favorable to the State, giving it the benefit of all reasonable inferences, yields a determination that the cooler was not a safe place. See State v. Pratt, 152 N.C. App. 694, 699-700, 568 S.E.2d 276, 280 (2002) (determining that being gagged and tied to a tree in the woods at night where someone was not likely to find you is an unsafe place). It is true that thedefinition of “safe place” is somewhat elusive and evaluated on a case-by-case basis, see State v. Corbett, 168 N.C. App. 117, 607 S.E.2d 281 (2005); State v. Sakobie, 157 N.C. App. 275, 579 S.E.2d 125 (2003); however, the evidence here is that Baylon had to be let out of the cooler by another person, and from that it is reasonable to infer that he could not get out of the cooler on his own. See State v. Jerrett, 309 N.C. 239, 262, 307 S.E.2d 339, 351 (1983) (discussing that section 14-39(b)'s second-degree kidnapping implies a voluntary or willful release by defendant). Thus, being left trapped in a walk-in cooler with no means of effecting a safe escape yourself does not constitute being left in a safe place.
    Defendant next argues that the trial court erred in denying his request for an instruction on second-degree kidnapping as a lesser included offense of kidnapping in the first degree. We see no error in the trial court's denial of this motion.
        The test in every case involving the propriety of an instruction on a lesser grade of an offense is not whether the jury could convict defendant of the lesser crime, but whether the State's evidence is positive as to each element of the crime charged and whether there is any conflicting evidence relating to any of these elements.

State v. Leroux, 326 N.C. 368, 378, 390 S.E.2d 314, 322 (1990). As we determined above, the State's evidence was positive as to each element of first-degree kidnapping. The evidence was uncontradicted that defendant trapped a victim in a walk-in cooler which could not be opened without the help of someone outside the cooler. Further, defendant was not the one that let Baylon out of the cooler near the end of or after the robbery, instead he fledthe scene. Thus, with evidence positive as to each element of first-degree kidnapping and absent any conflicting evidence suggesting that the cooler was a safe place or that defendant released Baylon, we see no indication that the jury should have been instructed on second-degree kidnapping. See State v. Parker, 143 N.C. App. 680, 687-88, 550 S.E.2d 174, 178-79 (2001).
    Last, defendant argues that he is entitled to a new sentencing hearing based on the fact that during sentencing the trial court inquired whether there had been a plea offer. The State answered in the affirmative and apparently of its own accord went further to describe what the terms of the offer were. Defense counsel did not object, but began to reply, then withdrew any remarks. The trial court then sentenced defendant to consecutive sentences in the presumptive range for the robbery and kidnapping offenses. Defendant contends that the trial court's question, the State's answer which referenced rejection of a consolidated sentence, and the court's imposition of a consecutive sentence unduly punished him for exercising his right to trial. We cannot agree.
    Our Supreme Court in State v. Cannon, 326 N.C. 37, 387 S.E.2d 450 (1990) held that where it can be reasonably inferred from the record that the trial court imposed its sentence at least in part on defendant's exercise of his right to a trial, then a new sentencing hearing is warranted. However, here there is nothing in the record, transcript, or otherwise that would provide anything more than a speculative connection between the inquiry and the sentence. Impropriety is not a reasonable inference to draw froma single admittedly irrelevant question of whether a plea agreement had been offered, followed by a sentence justified on the evidence. Most cases in which this issue arises, and especially in cases where our appellate courts have remanded for a new sentencing hearing, have had more in the record than a single question by the court. See, e.g., Cannon, 326 N.C. at 38-39, 387 S.E.2d at 451 (pretrial statements by trial court that defendants would receive the maximum sentence if convicted after rejecting plea agreements created a reasonable inference that the trial court imposed its sentence at least in part on defendants proceeding to trial); State v. Langford, 319 N.C. 340, 346, 354 S.E.2d 523, 526 (1987) (refusing to inflate an isolated “albeit . . . unnecessary statement” by the trial court, the Court affirmed defendant's sentence where the record as a whole revealed no indication the judge punished defendant for proceeding to trial); State v. Bright, 301 N.C. 243, 261-62, 271 S.E.2d 368, 379-80 (1980) (although disapproving of trial court's pre-sentence remarks, the Court found that they did not give any indication the sentence imposed was increased beyond that warranted by the evidence due to defendant proceeding to trial); State v. Boone, 293 N.C. 702, 712-13, 239 S.E.2d 459, 465 (1977) (trial court's remarks on the record that it was compelled to issue an active sentence due to defendant's failure to accept a plea agreement warranted reversal); State v. Swinney, 271 N.C. 130, 133-34, 155 S.E.2d 545, 547-48 (1967) (a heavily aggravated sentence under the circumstances, plus comments that the trial court felt duty bound to “punish” defendant wassufficient to require a new sentencing hearing); State v. Young, 166 N.C. App. 401, 411-12, 602 S.E.2d 374, 380-81 (2004) (new sentence ordered where trial court's pretrial comments promising a mitigated sentence for pleading guilty were countered by additional comments and a sentence in the presumptive range after trial); State v. Poag, 159 N.C. App. 312, 323-24, 583 S.E.2d 661, 669-70 (2003) (trial court's statement that it would issue concurrent sentences if defendant accepted a plea agreement created a reasonable basis to infer punishment for going to trial when defendant was sentenced to consecutive sentences following trial); State v. Peterson, 154 N.C. App. 515, 518, 571 S.E.2d 883, 885 (2002) (where trial court stated defendant “rolled the dice” by going to trial when “any rational person” would have never done so against “overwhelming evidence,” defendant had met his burden to create at least a reasonable inference of impropriety).
    Accordingly, we find no error in defendant's trial or his sentencing hearing.
    No error.
    Judges TIMMONS-GOODSON and HUDSON concur.
    Report per Rule 30(e).

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