An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-393


Filed: 15 November 2005


    v.                        Forsyth County
                            No. 04 CRS 051914

    Appeal by defendant from judgments entered 29 September 2004 by Judge Henry E. Frye, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 10 November 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State.

    Richard E. Jester, for defendant-appellant.

    TYSON, Judge.

    Kevin Lamont Leak (“defendant”) appeals from judgments entered after a jury found him to be guilty of robbery with a dangerous weapon and two counts of first-degree kidnapping. We vacate and remand for resentencing.

I. Background
    The State's evidence tended to show that at approximately 1:20 a.m. on 17 February 2004, two masked men wielded a shotgun and a handgun and forced three employees of a Wendy's Restaurant, who were leaving the restaurant, to reenter the restaurant. One of the robbers herded the employees into a freezer at the back of the restaurant. The other robber ordered Ms. Paula Moore (“Moore”), the manager of the restaurant, to open the office safe. Mooreopened the safe and filled a bank bag with money. The robbers took the bag and fled. Moore called the police shortly after the robbers departed.
    A police officer on patrol received a radio dispatch at 1:49 a.m. regarding the robbery of the Wendy's Restaurant. The dispatch directed the officer to be on the alert for “two black males dressed all in black clothing, approximately 5' 7” to 5' 8” [in height], medium build.” At 2:10 a.m., the officer observed two black males about two-and-one-half blocks from the scene of the robbery. One of the men was exiting an automobile. The other man was standing with a dog on the sidewalk. The officer shined a flashlight in the automobile and saw a pump shotgun located between the two front seats. The man on the sidewalk, whom the officer identified as defendant, acknowledged that the vehicle and shotgun were his. Defendant became agitated when the officer asked him why he had a shotgun in the vehicle. The officer shined the flashlight into the vehicle again and observed a plastic bag filled with dark clothing and a black ski mask on the front seat near the center console. Other officers arrived at the scene and searched the vehicle. They found several items of black or dark clothing, including black toboggans and black gloves, in the plastic bag. They also found a loaded handgun in the pocket of a jacket on the rear seat and a dog food bag containing $7,343.00 in cash. The officer identified the second man as Sedric McMillian (“McMillian”).
    McMillian testified for the State that he and defendant robbedthe Wendy's Restaurant on 17 February 2004. He escorted three of the employees to the freezer and detained them, while defendant went into the office and got the money. They fled to defendant's apartment, where defendant put the money into a dog food bag. McMillian placed the dog food bag in the back of defendant's automobile.
     On 29 September 2004, a jury found defendant guilty of robbery with a dangerous weapon and two counts of first-degree kidnapping . The trial court sentenced defendant to consecutive terms of imprisonment of sixty-three to eighty-five months, seventy-two to ninety-six months, and seventy-two to ninety-six months. Defendant appeals.
II. Issues
    The issues on appeal are whether the trial court erred by: (1) denying defendant's motion to dismiss the charges of and in instructing the jury as to the charges of first-degree kidnapping when the charges were not supported by the evidence; and (2) denying defendant's motion to suppress the evidence seized from his vehicle and not entering an order denying his motion to suppress said evidence when his constitutional rights to be free of unreasonable search and seizure were violated.
III. Motion to Dismiss
    Defendant argues the trial court erred by denying his motion to dismiss the first-degree kidnapping charges. A motion to dismiss requires the trial court to determine whether there is substantial evidence to establish each element of the offensecharged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). In making this determination, the court must consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
         The offense of kidnapping is established upon proof of an unlawful, nonconsensual restraint, confinement or removal of a person from one place to another, for the purpose of: (1) holding the person for ransom, as a hostage or using them as a shield; (2) facilitating flight from or the commission of any felony; or (3) terrorizing or doing serious bodily harm to the person.

State v. Smith, 160 N.C. App. 107, 119, 584 S.E.2d 830, 838 (2003). However, a person may not be convicted both of kidnapping and another felony if the restraint or removal is an inherent and inevitable element of the other felony, such as robbery with a dangerous weapon. State v. Irwin, 304 N.C. 93, 102-03, 282 S.E.2d 439, 446 (1981).
    Defendant contends he could not have been convicted of both robbery with a dangerous weapon and kidnapping because the restraint of the employees was inherent in the crime of robbery with a dangerous weapon. Alternatively, he argues the evidence is insufficient to establish first-degree kidnapping because the evidence fails to show the victims were not left in a safe place.
    The decisions which have explored whether a defendant's restraint or removal of a person during the commission of an armed robbery could also be the basis for a conviction of kidnapping havefocused on two factors: (1) whether the person was forcibly removed for any other reason than the commission of the robbery; or (2) whether the restraint or removal exposed the person to a greater danger than inherent in the other offense. State v. McNeil, 155 N.C. App. 540, 545-46, 574 S.E.2d 145, 148-49 (2002), appeal dismissed and disc. rev. denied, 356 N.C. 688, 578 S.E.2d 323 (2003). The following cases are representative of the results reached by the appellate courts in applying these factors. In Irwin, our Supreme Court held that the removal of a drug store clerk from one part of the store to another where a safe was located, constituted an inherent and integral part of the robbery with a dangerous weapon and thus was insufficient to support a separate conviction of kidnapping. 304 N.C. at 102-03, 282 S.E.2d at 446 . In State v. Davidson,, this Court upheld a separate conviction of kidnapping where three people in a clothing store were forced to enter a back room in which no property was kept. 77 N.C. App. 540, 543, 335 S.E.2d 518, 520, appeal dismissed and disc. rev. denied, 314 N.C. 670, 337 S.E.2d 583 (1985). Similarly, in State v. Joyce, this Court upheld a separate conviction of kidnapping where the victims were restrained and removed from one room to another. 104 N.C. App. 558, 567, 410 S.E.2d 516, 521 (1991), cert. denied, 331 N.C. 120, 414 S.E.2d 764 (1992) . This Court also noted that the room in which the victims were confined did not contain safes, cash registers, or lock boxes which held property that could be taken. Id. The removal to that room was not an inherent part of the robbery and was not necessary tofacilitate the robbery. Id. In State v. Beatty, a robber pointed a gun at a restaurant employee while another robber taped a second employee's hands with duct tape and forced him to lie on the floor as the owner of the restaurant attempted to open the safe for the robbers. 347 N.C. 555, 559-60, 495 S.E.2d 367, 370 (1998) . Our Supreme Court upheld a kidnapping conviction of the employee whose hands were taped because the employee was subjected to a greater danger than that inherent in armed robbery itself. Id. The Court reversed the conviction of kidnapping against the other employee because the act of pointing the gun at him, without removing him, was an inherent part of the armed robbery. Id.
    Here, the employees were removed to the freezer, where there were no safes, lock boxes, or money to be taken. Moreover, they were subjected to the cold freezing temperatures of the freezer. Thus, they were subjected to a greater harm or restraint than that inherent in the robbery itself. Defendant could be separately convicted of kidnapping.
    We now consider whether defendant could be convicted of first- degree kidnapping. The distinction between first-degree kidnapping and second degree kidnapping is whether the person kidnapped was not released in a safe place, was seriously injured, or was sexually assaulted. N.C. Gen. Stat. § 14-39(b) (2003). If the person was not released in a safe place, or was seriously injured or sexually assaulted, then the offense is first-degree kidnapping. Id. The indictment in the case at bar charged the victims were not released in a safe place.    Release of a kidnapping victim in a safe place implies a “conscious, willful action on the part of the defendant to assure that his victim is released in a place of safety.” State v. Jerrett, 309 N.C. 239, 262, 307 S.E.2d 339, 351 (1983). The General Assembly did not define the term “safe place” in N.C. Gen. Stat. § 14-39 and the cases dealing with the issue have been decided on a case-by-case basis depending upon the facts of the particular case. State v. Sakobie, 157 N.C. App. 275, 282, 579 S.E.2d 125, 130 (2003). Cases finding a place not to be safe where the victim was released have focused on the unfamiliarity of the place to the victim, the lack of access to immediate help or rescue assistance, or location in a wooded, isolated, or dangerous area. See id. (the victim was released in unfamiliar isolated wooded area); State v. Heatwole, 333 N.C. 156, 161, 423 S.E.2d 735, 738 (1992) (the victim was released in the focal point of law enforcement weapons), cert. denied, 520 U.S. 1122, 137 L. Ed. 2d 339 (1997); State v. Pratt, 306 N.C. 673, 682-83, 295 S.E.2d 462, 468 (1982) (the victim, who had no hands, was left bound and undressed in the wintertime in an unfamiliar area); State v. Pratt, 152 N.C. App. 694, 700, 568 S.E.2d 276, 280 (2002) (the victim was left bound and gagged in the woods at nighttime) , cert. denied and appeal dismissed, 357 N.C. 168, 581 S.E.2d 442 (2003); State v. Smith, 110 N.C. App. 119, 137, 429 S.E.2d 425, 434 (the victim was left tied to a tree in a wooded and snake-infested area), aff'd per curiam, 335 N.C. 162, 435 S.E.2d 770 (1993) . Conversely, cases have found a place to be safe if it is familiar to the victim,protects the victim, or affords the victim ready access to rescue assistance. See State v. White, 127 N.C. App. 565, 573, 492 S.E.2d 48, 53 (1997) (the victim was released mid-afternoon at a motel near a major shopping center and was given change to make a telephone call); Jerrett, 309 N.C. at 263, 307 S.E.2d at 352 (the victim, who locked herself in a storage room, was in a safe place).
    Here, the victims were released at the place where they worked. The freezer could be opened from the inside and the employees walked out of the freezer on their own within minutes after ensuring the perpetrators had left the building. They awaited the arrival of the police, who had been called by the store manager. All of the evidence shows that the victims were released in a safe place. Without any other basis to support the conviction of first-degree kidnapping, those convictions must be vacated. See White, 127 N.C. App. at 573, 492 S.E.2d at 53.
    By finding defendant guilty of two counts of first-degree kidnapping, the jury also found all of the elements of the lesser offense of second degree kidnapping. “When a jury finds the facts necessary to constitute one offense, it also inescapably finds the facts necessary to constitute all lesser-included offenses of that offense.” State v. Squires, 357 N.C. 529, 536, 591 S.E.2d 837, 842 (2003), cert. denied, 541 U.S. 1088, 159 L. Ed. 2d 252 (2004). Accordingly, we vacate the two convictions of first-degree kidnapping and remand the matter for entry of judgments on convictions of second degree kidnapping and resentencing .
IV. Motion to Suppress
    Defendant next argues the trial court erred in denying his motion to suppress the evidence seized from his vehicle and in failing to enter a written order ruling upon the motion to suppress. He argues the evidence should have been suppressed because it was the product of a warrantless search and was conducted without his consent.
    The law is settled that a search without a warrant of a motor vehicle which is on a public roadway or in a public vehicular area is constitutionally permissible if the officer has probable cause to search the vehicle. State v. Islieb, 319 N.C. 634, 638, 356 S.E.2d 573, 577 (1987). “Probable cause exists where 'the facts and circumstances within [the officers'] knowledge and of which they had reasonable trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed.” State v. Zuniga, 312 N.C. 251, 261, 322 S.E.2d 140, 146 (1984) (quoting Brinegar v. United States, 338 U.S. 160, 175, 93 L. Ed. 1879, 1890 (1949)), cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987). Although the better practice is to make findings of fact in ruling upon a motion to suppress, the necessary findings are supplied when there is no material conflict in the evidence and the court admits the challenged evidence. State v. Phillips, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980).
    “Objects which are in the plain view of a law enforcement officer who has the right to be in the position to have that view are subject to seizure and may be introduced into evidence.” Statev. Hunter, 299 N.C. 29, 34, 261 S.E.2d 189, 193 (1980). Here, the evidence is undisputed that the officer, standing outside the automobile, saw the shotgun in plain view inside the vehicle parked on a public street. The officer had just received information that a robbery had recently occurred in the immediate vicinity and that a long gun, or shotgun, was used in perpetrating the robbery. In or about the vehicle, he saw two men satisfying the description of the perpetrators of the robbery. Under these circumstances, the officer had probable cause to search the vehicle without a warrant. The trial court properly denied defendant's motion and admitted the evidence. This assignment of error is overruled.
V. Conclusion
    The trial court erred in denying defendant's motion to dismiss the two counts of first-degree kidnapping when all of the evidence showed that the employees were released in a safe place. As there is no other basis to support the convictions of first-degree kidnapping, we vacate those judgments and remand for entry of judgments for convictions of second degree kidnapping and resentencing.
    We find no error in the trial court denying defendant's motion to suppress when the officer had probable cause to search defendant's vehicle without a warrant.
    No error in part, Vacated in part, and Remanded for Resentencing.
    Judges MCCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

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