{ "id": 8468395, "name": "STATE OF NORTH CAROLINA v. ABDUL JERMAINE CORBETT", "name_abbreviation": "State v. Corbett", "decision_date": "2005-01-18", "docket_number": "No. COA03-1494", "first_page": "117", "last_page": "126", "citations": [ { "type": "official", "cite": "168 N.C. App. 117" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "410 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "228" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522544 ], "year": 1991, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0498-01" ] }, { "cite": "591 S.E.2d 11", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "17", "parenthetical": "quoting State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991); see N.C. Gen. Stat. \u00a7 8C-1, Rule 401 and Rule 403 (2003" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 259", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8916392 ], "year": 2004, "pin_cites": [ { "page": "266", "parenthetical": "quoting State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991); see N.C. Gen. Stat. \u00a7 8C-1, Rule 401 and Rule 403 (2003" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0259-01" ] }, { "cite": "402 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 96", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541896, 2540272, 2542224, 2537594, 2541503 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0096-01", "/nc/328/0096-02", "/nc/328/0096-03", "/nc/328/0096-04", "/nc/328/0096-05" ] }, { "cite": "394 S.E.2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "672", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 149", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526421 ], "year": 1990, "pin_cites": [ { "page": "153", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0149-01" ] }, { "cite": "435 S.E.2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "victim left tied to a tree in a wooded area off a dirt road where snakes were later seen was not a \"safe place\"" } ], "opinion_index": 0 }, { "cite": "335 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527626 ], "year": 1993, "pin_cites": [ { "parenthetical": "victim left tied to a tree in a wooded area off a dirt road where snakes were later seen was not a \"safe place\"" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0162-01" ] }, { "cite": "429 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "434", "parenthetical": "victim left tied to a tree in a wooded area off a dirt road where snakes were later seen was not a \"safe place\"" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 119", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525043 ], "year": 1993, "pin_cites": [ { "page": "137", "parenthetical": "victim left tied to a tree in a wooded area off a dirt road where snakes were later seen was not a \"safe place\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0119-01" ] }, { "cite": "581 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "victim left bound and gagged in the woods at nighttime was not a \"safe place\"" } ], "opinion_index": 0 }, { "cite": "357 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491396, 491752, 491593, 491723, 491412, 491647, 491485, 491839 ], "year": 2003, "pin_cites": [ { "parenthetical": "victim left bound and gagged in the woods at nighttime was not a \"safe place\"" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0168-04", "/nc/357/0168-08", "/nc/357/0168-01", "/nc/357/0168-07", "/nc/357/0168-05", "/nc/357/0168-06", "/nc/357/0168-03", "/nc/357/0168-02" ] }, { "cite": "568 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "280" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 694", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251313 ], "year": 2002, "pin_cites": [ { "page": "700" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0694-01" ] }, { "cite": "295 S.E.2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "468", "parenthetical": "releasing a victim bound, undressed, in the wintertime, in an area unfamiliar to him, and in view of his obvious handicap that he has no hands, he was not released in a \"safe place\"" } ], "opinion_index": 0 }, { "cite": "306 N.C. 673", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573417 ], "year": 1982, "pin_cites": [ { "page": "682-83", "parenthetical": "releasing a victim bound, undressed, in the wintertime, in an area unfamiliar to him, and in view of his obvious handicap that he has no hands, he was not released in a \"safe place\"" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0673-01" ] }, { "cite": "423 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1992, "pin_cites": [ { "page": "738", "parenthetical": "releasing the victim in the focal point of law enforcement weapons was not a \"safe place\"" }, { "page": "738" }, { "page": "737-38" } ], "opinion_index": 0 }, { "cite": "333 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548865 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "161", "parenthetical": "releasing the victim in the focal point of law enforcement weapons was not a \"safe place\"" }, { "page": "161" }, { "page": "159" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0156-01" ] }, { "cite": "579 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "129", "parenthetical": "Releasing the victim in an isolated wooded area with which the victim was not familiar was not a \"safe place\"" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 275", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186178 ], "year": 2003, "pin_cites": [ { "page": "280-81", "parenthetical": "Releasing the victim in an isolated wooded area with which the victim was not familiar was not a \"safe place\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0275-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-39", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2003, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "307 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "352" } ], "opinion_index": 1 }, { "cite": "309 N.C. 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761933 ], "year": 1983, "pin_cites": [ { "page": "263" } ], "opinion_index": 1, "case_paths": [ "/nc/309/0239-01" ] }, { "cite": "333 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "year": 1992, "pin_cites": [ { "page": "161" } ], "opinion_index": 1 }, { "cite": "415 S.E.2d 726", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "729" }, { "page": "729" } ], "opinion_index": 1 }, { "cite": "331 N.C. 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498038 ], "year": 1992, "pin_cites": [ { "page": "244" } ], "opinion_index": 1, "case_paths": [ "/nc/331/0239-01" ] }, { "cite": "93 L. Ed. 2d 77", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 1 }, { "cite": "479 U.S. 836", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6340738, 6341187, 6339651, 6340166, 6341416, 6339181, 6341774, 6340368, 6339954, 6340948, 6338904, 6339482, 6339803, 6341597, 6338527 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/us/479/0836-10", "/us/479/0836-12", "/us/479/0836-05", "/us/479/0836-08", "/us/479/0836-13", "/us/479/0836-03", "/us/479/0836-15", "/us/479/0836-09", "/us/479/0836-07", "/us/479/0836-11", "/us/479/0836-02", "/us/479/0836-04", "/us/479/0836-06", "/us/479/0836-14", "/us/479/0836-01" ] }, { "cite": "340 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "469" } ], "opinion_index": 1 }, { "cite": "316 N.C. 111", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694881 ], "pin_cites": [ { "page": "119" } ], "opinion_index": 1, "case_paths": [ "/nc/316/0111-01" ] }, { "cite": "423 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "737" }, { "page": "738" } ], "opinion_index": 1 }, { "cite": "579 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "130", "parenthetical": "citing N.C. Gen. Stat. \u00a7 14-39 (2003)" } ], "opinion_index": 1 }, { "cite": "157 N.C. App. 275", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186178 ], "year": 2003, "pin_cites": [ { "page": "282", "parenthetical": "citing N.C. Gen. Stat. \u00a7 14-39 (2003)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/157/0275-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-39", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2003, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 880, "char_count": 20410, "ocr_confidence": 0.723, "pagerank": { "raw": 4.0138298990704407e-07, "percentile": 0.9063370103816863 }, "sha256": "4e465c75b4f8f88b83fb2bce04226b07b5d59e1b3fca412453084d45c3d07ddd", "simhash": "1:332a3032d72e18f8", "word_count": 3479 }, "last_updated": "2023-07-14T17:36:09.557360+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUNTER concurs.", "Judge TIMMONS-GOODSON dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. ABDUL JERMAINE CORBETT" ], "opinions": [ { "text": "McCullough, Judge.\nDefendant appeals from his judgment and sentence imposed following a jury\u2019s verdict finding him guilty of the charge of first-degree kidnapping. Additionally, defendant was charged with and pled guilty to common law robbery for which the trial court entered judgment.\nThe State\u2019s evidence tended to show the following: On the night of 9 March 2003, Reginald Harris (\u201cMr. Harris\u201d) was working the closing shift of the Blockbuster Video Store (\u201cvideo store\u201d) in Ashton Square off Raleigh\u2019s Capital Boulevard. Mr. Harris was a manager of the store and was working with a fellow employee, Rebecca Carman (\u201cMs. Carman\u201d). Defendant was in the store near closing time, and was observed by Mr. Harris as suspiciously walking back and forth, from one side of the store to the other. Mr. Harris called the police and requested an officer come by the store.\nMr. Harris then announced that the video store would be closing shortly and walked to lock the front door of the store so no more patrons could enter. At that point defendant was the only patron left in the store. When Mr. Harris entered the alcove area between the video store\u2019s inside and outside doors, he turned and observed defendant grab Ms. Carman by her waist. Defendant pulled her off the step stool she was working from, and gripping her by the neck, shoved a blunt, hard object into her back. Defendant gestured to Mr. Harris to come back into the video store, which he did leaving the front door unlocked. Mr. Harris could not discern at any point if it was a knife or a gun defendant had at Ms. Carman\u2019s back. Defendant forced Ms. Carman to the front of the store and pushed her down behind the counter area so that she could hot be seen from the front door. Defendant demanded Mr. Harris give him the money in the store\u2019s safe and cash register. The safe was time delayed and Mr. Harris informed defendant it would take approximately 10 minutes to open. Defendant told Mr. Harris to sit down, relax, and read something.\nSoon thereafter, Raleigh Police Officer David Dufault (\u201cOfficer Dufault\u201d) entered the video store. Officer Dufault immediately saw defendant with Ms. Carman in front of him and behind the counter on the floor. As he entered the store, he unsnapped the holster of his weapon, and touching it with his hand, told defendant to put his weapon down and to free Ms. Carman. Defendant pulled Ms. Carman up by the neck and placed her in between him and Officer Dufault, and began threatening he would \u201cblow her way.\u201d Officer Dufault tried continually to calm defendant, but defendant kept threatening Ms. Carman\u2019s life and began moving himself, with her as his shield, towards the front of the video store. He told Mr. Harris to get Officer Dufault\u2019s gun by the count of ten, or he would shoot Ms. Carman.\nWhen defendant reached the front door, he backed himself and Ms. Carman into the one-way door attempting to open it from the wrong direction. Defendant demanded someone open the front door and Mr. Harris came and assisted him. It was at approximately this point when Raleigh Police Officer Jeremy Garkalins (\u201cOfficer Garkalins\u201d) drove up to the video store. Officer Garkalins stepped out of his squad car, and standing behind it, drew his sidearm. Defendant saw Officer Garkalins arrive and then threatened to kill everyone at the scene.\nBelieving defendant had reached his \u201cboiling point,\u201d Officer Dufault drew his sidearm, and pointed it such that defendant and Ms. Carman were in his line of fire. Defendant immediately released his grip on Ms. Carman, allowing her to drop to her knees. Defendant threw his weapon to the ground. Officer Dufault instructed defendant to get down on the ground. Defendant laid on his stomach on the floor and Officer Dufault and Officer Garkalins arrested him.\nDefendant put on no evidence. The jury returned a guilty verdict.\nBased on his prior record level of III, the Court gave defendant consecutive sentences of 10 to 12 months pursuant to his guilty plea of common law robbery, and 116 to 149 months pursuant to the jury\u2019s verdict of finding him guilty of first-degree kidnapping.\nDefendant now raises two issues on appeal relating to the charge of kidnapping: first, that the trial court erred in granting the State\u2019s request for a jury instruction relating to whether Ms. Carman was released in a safe place; and second, that the court erred in not allowing to be placed into evidence, or to be referred to in defendant\u2019s closing argument, the arrest warrant initially charging defendant for second-degree kidnapping. For the reasons stated herein, we overrule defendant\u2019s assignments of error.\nJury Instruction on First-Degree Kidnapping\nDefendant first argues that the court erred in granting the State\u2019s request regarding the jury instruction on the \u201csafe place\u201d element of first-degree kidnapping. Based on the evidence presented in this case, we find the court did not err in granting the State\u2019s requested instruction.\nN.C. Gen. Stat. \u00a7 14-39(b) (2003) states that:\nThere shall be two degrees of kidnapping as defined by subsection (a). If the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree and is punishable as a Class C felony. If the person kidnapped was released in a safe place by the defendant and had hot been seriously injured or sexually assaulted, the offense is kidnapping in the second degree and is punishable as a Class E felony.\nThe legislature has not defined by statute what is or is not a \u201csafe place.\u201d Nor is there any mention in the Criminal Pattern Jury Instructions as to the parameters of a \u201csafe place.\u201d Therefore, the determination of whether a kidnapping victim was released in a safe place has been decided on a case-by-case basis. See State v. Sakobie, 157 N.C. App. 275, 280-81, 579 S.E.2d 125, 129 (2003) (Releasing the victim in an isolated wooded area with which the victim was not familiar was not a \u201csafe place\u201d); State v. Heatwole, 333 N.C. 156, 161, 423 S.E.2d 735, 738 (1992) (releasing the victim in the focal point of law enforcement weapons was not a \u201csafe place\u201d); State v. Pratt, 306 N.C. 673, 682-83, 295 S.E.2d 462, 468 (1982) (releasing a victim bound, undressed, in the wintertime, in an area unfamiliar to him, and in view of his obvious handicap that he has no hands, he was not released in a \u201csafe place\u201d); State v. Pratt, 152 N.C. App. 694, 700, 568 S.E.2d 276, 280 (2002), cert. denied, appeal dismissed, 357 N.C. 168, 581 S.E.2d 442 (2003) (victim left bound and gagged in the woods at nighttime was not a \u201csafe place\u201d); State v. Smith, 110 N.C. App. 119, 137, 429 S.E.2d 425, 434, aff\u2019d per curiam, 335 N.C. 162, 435 S.E.2d 770 (1993) (victim left tied to a tree in a wooded area off a dirt road where snakes were later seen was not a \u201csafe place\u201d).\nIn Heatwole, our Supreme Court held the following to be a sufficient factual basis to support a guilty plea of first-degree kidnapping:\n[Releasing a kidnap victim when the kidnapper is aware he is cornered and outnumbered by law enforcement officials is not \u201cvoluntary\u201d and that sending her out into the focal point of their weapons is not a \u201csafe place.\u201d\n333 N.C. 156, 161, 423 S.E.2d 735, 738 (1992). The victim in Heatwole was defendant\u2019s former girlfriend. She was kidnapped and taken to the defendant\u2019s father\u2019s house. Heatwole, 333 N.C. at 159, 423 S.E.2d at 737-38. There the defendant killed the security guard of the subdivision in which the house was located, and killed his stepmother. Id. Ten officers surrounded the home with weapons drawn, and the defendant released the victim sending her out of the house and into the focal point of the weapons. Id.\nIn the case at bar, defendant was charged with first-degree kidnapping based on the evidence that defendant did not release Ms. Carman, his victim, in a safe place. The basis of the State\u2019s theory was pursuant to Heatwole, that the evidence supported an instruction that defendant released the victim into the focal point of the arresting officers\u2019 drawn weapons, and thus not a \u201csafe place.\u201d The instruction consisted of the following:\nAnd fifth, that the person was not released by the Defendant in a safe place. Now, release of a kidnap victim when the kidnapper is aware he is cornered and outnumbered by law enforcement officials is not voluntary, and sending the kidnap victim out into the focal point of the weapons of the police officers is not a safe place.\nDefendant argues that this instruction denied him the presumption of innocence in that it is conclusive that Ms. Carman\u2019s release in this case was not in a \u201csafe place.\u201d Defendant additionally argues the facts of his case do not warrant a Heatwole instruction, as the facts of Heatwole are of a different and much more heinous circumstance than those at bar. We do not agree with either contention.\nIn this case, defendant made Officer Dufault believe he had a gun in the victim\u2019s back. He threatened he would kill her and everyone else at the scene before ever going back to jail. Based upon this interpretation, Officer Dufault\u2019s testimony revealed that he drew his weapon on defendant and Ms. Carman when he believed the risk of hitting Ms. Carman, should he be required to shoot, was outweighed by the peril in which she was being held:\nA. ... When he got into that space, he then proceeded to say he\u2019s going to count to three and he\u2019s going to kill her. At that time he says one, like he was counting. At that time, that\u2019s when I drew my weapon, because I figured, from the whole time from the very beginning when I first entered to then, he had gradually gotten angrier and angrier. And reason I drew my weapon when he said one, because I figured he\u2019s cornered now, he\u2019s outnumbered, because there\u2019s another officer here. I figured if he\u2019s going to do something, he\u2019s going to do something now, because he\u2019s beyond his boiling point.\nOn cross-examination, when asking to clarify when exactly defendant let go of the victim, Officer Dufault stated:\nA. She \u2014 he let her go once I had the weapon drawn on him, where she was still being held. I mean, he didn\u2019t let her go when I was drawing it, he only let her go when I had it pointed.\nOfficer Garkalin testified as to the following:\nQ. So while you\u2019re setting up sight and you have your weapon drawn, but not pointed at him, but basically\u2014\nA. In the low ready.\nQ. \u2014Officer Dufault comes from this way and he ultimately pulls his weapon, at that point the Defendant surrenders; is that right?\nA. Exactly.\nWe conclude that this testimony was sufficient to support a jury\u2019s determination that Ms. Carman\u2019s release was involuntary and into the focal point of at least one officer\u2019s weapon. It is thus sufficient to support an instruction under Heatwole. The court\u2019s instruction did not conclude Ms. Carman was released in an unsafe place. Rather, it provided that should the jury find the circumstances of the instruction as to the release of Ms. Carman to be in such place, such a release was not in a \u201csafe place.\u201d At all times it was still upon the jury to find the facts of the circumstances surrounding the release beyond a reasonable doubt.\nLastly, we note that, while in this instance there was arguably only one officer\u2019s weapon endangering the life of Ms. Carman, we believe that being in the line of fire of one weapon falls well within the legislature\u2019s intent of what is not a \u201csafe place\u201d under N.C. Gen. Stat. \u00a7 14-39(b). Defendant\u2019s argument that there needs to be circumstances akin to having two prior homicides and ten officers\u2019 weapons drawn upon the kidnapping victim to warrant an instruction based on Heatwole, underestimates the threat of being placed in the potential path of even a single bullet.\nThis assignment of error is overruled.\nEvidence of Arrest Warrant\nNext, defendant contends the trial court erred in refusing to admit the arrest warrant containing defendant\u2019s initial charge of second-degree kidnapping. We do not agree.\nWe have held that:\nAn arrest warrant issues upon probable cause that an offense has been committed and that the person to be arrested was the perpetrator. This does not mean, however, that a subsequent indictment must necessarily flow from or be framed within the allegations of the arrest warrant. When a defendant is tried upon an indictment, for example, the validity of the arrest warrant has no effect upon the trial court\u2019s jurisdiction over the subject of the indictment.\nState v. Riggs, 100 N.C. App. 149, 153, 394 S.E.2d 670, 672 (1990) (citation omitted), disc. review denied, 328 N.C. 96, 402 S.E.2d 425 (1991). Therefore, the allegations of the arrest warrant do not necessarily \u201cframe\u201d what is relevant to a particular criminal case tried upon an indictment.\nIn the case at bar, defendant was indicted for first-degree kidnapping on the theory that the victim was not released in a \u201csafe place.\u201d This is the crime for which the State put on evidence in its case-in-chief, and defendant conceded all elements except whether or not the victim was released in a \u201csafe place.\u201d During the cross-examination of Officer Dufault, the court denied defendant\u2019s attempt to admit evidence of the arrest warrant charging defendant with second-degree kidnapping. It is clear from the transcript the court believed the warrant had no relevance on the issue of defendant\u2019s guilt or whether Ms. Carman was released in a \u201csafe place.\u201d\nWhile \u201c \u2018the trial court\u2019s rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal.\u2019 \u201d Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004) (quoting State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991); see N.C. Gen. Stat. \u00a7 8C-1, Rule 401 and Rule 403 (2003).\nWe agree with the court that the arrest warrant in this case was outside the scope of matters relevant to whether the victim had been released in a \u201csafe place.\u201d Additionally, we note that the face of the warrant stated that the victim was a \u201chostage,\u201d and was used \u201cas a shield in an attempt to facilitate the commission of an armed robbery.\u201d If of any relevance, the warrant is corroborative of the testimony that Ms. Carman at some point was placed in the line of fire, and there was a likelihood that she was released in an unsafe place.\nThis assignment of error is overruled.\nBased upon thorough review of the transcript, record, and briefs, we find defendant received a fair trial free from reversible error.\nNo error.\nJudge HUNTER concurs.\nJudge TIMMONS-GOODSON dissents.", "type": "majority", "author": "McCullough, Judge." }, { "text": "TIMMONS-GOODSON, Judge,\ndissenting.\nBecause I disagree with the majority\u2019s conclusion that the trial court did not err in instructing the jury, I respectfully dissent.\nOur Supreme Court has previously concluded that \u201c[elements of criminal offenses present questions of fact which must be resolved by the jury upon the State\u2019s proof of their existence beyond a reasonable doubt.\u201d State v. Torain, 316 N.C. 111, 119, 340 S.E.2d 465, 469 (emphasis in original), cert. denied, 479 U.S. 836, 93 L. Ed. 2d 77 (1986). \u201cThis principle prohibits the use of evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.\u201d State v. Locklear, 331 N.C. 239, 244, 415 S.E.2d 726, 729 (1992). In the instant case, I conclude that the challenged portion of the trial court\u2019s instruction impermissibly relieved the State of its burden regarding an essential element of defendant\u2019s first-degree kidnapping charge \u2014 that the victim was not released in a safe place.\nAlthough I recognize that a jury instruction does not relieve the State of its burden when it \u201cmerely state[s] the substantive law of this state[,]\u201d Id. at 245, 415 S.E.2d at 729, I note that \u201cthe General Assembly has neither defined nor given guidance as to the meaning of the term \u2018safe place\u2019 in relation to the offense of first degree kidnapping[,]\u201d and \u201cour case law in North Carolina has not set out any test or rule for determining whether a release was in a \u2018safe place.\u2019 \u201d State v. Sakobie, 157 N.C. App. 275, 282, 579 S.E.2d 125, 130 (2003) (citing N.C. Gen. Stat. \u00a7 14-39 (2003)). Thus, because our courts have \u201cnot [been] provided any clear standard to apply,\u201d we employ \u201ca case-by-case approach\u201d that relies on the particular facts of each case. Id. Despite our Supreme Court\u2019s \u201cagree[ment]\u201d with \u201cthe State\u2019s position\u201d in State v. Heatwole, 333 N.C. 152, 161, 423 S.E.2d 735, 737 (1992), I conclude that the \u201ccase-by-case approach\u201d has not yet pronounced a strict rule of law regarding whether a particular place is \u201csafe\u201d for the purposes of N.C. Gen. Stat. \u00a7 14-39(b).\nIn Heatwole, the defendant argued that the trial court lacked a sufficient factual basis to accept his guilty plea because there was insufficient evidence that the victim had not been released in a safe place. The Supreme Court disagreed, concluding that \u201c[i]nasumch as there was a factual basis for each element of the offense, there is no reason to upset [the] defendant\u2019s guilty plea to first-degree kidnapping^]\u201d 333 N.C. at 161, 423 S.E.2d at 738.1 am not convinced that this statement amounts to a strict pronouncement that, as a matter of law, a defendant has failed to release a victim in a \u201csafe place\u201d where the defendant releases the victim unharmed, in the same place where the alleged kidnapping occurred, in plain view of police officers, and following the police officers\u2019 commands to do so. Instead, I believe it is \u201cfor the jury to resolve the conflicting inferences arising from this evidence.\u201d State v. Jerrett, 309 N.C. 239, 263, 307 S.E.2d 339, 352 (1983) (holding that, although the evidence presented a \u201cclose question\u201d as to whether the defendant released the victim in a safe place, because the evidence was sufficient to permit the jury to reasonably infer that the victim escaped, was rescued by the presence and intervention of a police officer, or was released by the defendant in the presence of the police officer, the trial court did not err in submitting the issue of first-degree kidnapping to the jury). Therefore, because I conclude that the challenged portion of the trial court\u2019s instruction in the instant case relieved the State of its burden of proving that the victim was not released in a safe place, I would reverse defendant\u2019s conviction and order a new trial.", "type": "dissent", "author": "TIMMONS-GOODSON, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Susan R. Lundberg, for the State.", "Massengale & Ozer, by Marilyn G. Ozer, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ABDUL JERMAINE CORBETT\nNo. COA03-1494\n(Filed 18 January 2005)\n1. Kidnapping\u2014 first-degree \u2014 requested instruction \u2014 safe place\nThe trial court did not err in a first-degree kidnapping case by granting the State\u2019s request for a jury instruction relating to whether the victim was released in a safe place, because: (1) the testimony was sufficient to support a jury\u2019s determination that the victim\u2019s release was involuntary and into the focal point of at least one officer\u2019s weapon; (2) the instruction did not conclude that the victim was released in an unsafe place, but at all times ensured that it was still upon the jury to find the facts surrounding the release beyond a reasonable doubt; and (3) being in the line of fire of one weapon falls within the legislature\u2019s intent of what is not a safe place under N.C.G.S. \u00a7 14-39(b).\n2. Evidence\u2014 arrest warrant \u2014 relevancy\nThe trial court did not err in a first-degree kidnapping case by refusing to admit the arrest warrant containing defendant\u2019s initial charge of second-degree kidnapping, because: (1) the allegations of the arrest warrant do not necessarily frame what is relevant to a particular criminal case tried upon an indictment; (2) the arrest warrant was outside the scope of matters relevant to whether the victim had been released in a safe place; and (3) if relevant at all, the warrant was corroborative of the testimony that the victim at some point was placed in the line of fire and there was a likelihood that she was released in an unsafe place.\nJudge Timmons-Goodson dissenting.\nAppeal by defendant from judgment entered 1 July 2003 by Judge A. Leon Stanback in Wake County Superior Court. Heard in the Court of Appeals 14 September 2004.\nAttorney General Roy Cooper, by Assistant Attorney General Susan R. Lundberg, for the State.\nMassengale & Ozer, by Marilyn G. Ozer, for defendant appellant." }, "file_name": "0117-01", "first_page_order": 147, "last_page_order": 156 }