STATE OF NORTH CAROLINA
v
.
Mecklenburg County
No. 03 CRS 224979
ROBERT DARNELL BRYANT 03 CRS 224951
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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