State v. White , 127 N.C. App. 565 ( 1997 )

Judge Walker

concurring.

The question of whether the victim was “not released in a safe place” is ordinarily an issue of fact for the jury. In this case, however, I agree with defendant’s contention that by submitting three counts of kidnapping, “the State creat[ed] the element of failure to release in a safe place for each count, causing the jury to focus on arbitrary points during the victim’s confinement, rather than her ultimate release at the motel.” This was especially true, as Count III of the kidnapping indictment charged, “he [defendant] did remove her [the victim] from a city park in the northeast section of Greensboro, N.C. to a home located at 2005 Lutheran Street. . .,” but did not mention that the victim was ultimately released in the parking lot of a motel. As such, I conclude there was insufficient evidence for a jury to find the victim was not released in a safe place; therefore, the defendant should not have been sentenced for a crime greater than second degree kidnapping.