¶1dissenting.
¶2Because I disagree with the majority’s conclusion that the trial court did not err in instructing the jury, I respectfully dissent.
¶3Our Supreme Court has previously concluded that “[elements of criminal offenses present questions of fact which must be resolved by the jury upon the State’s proof of their existence beyond a reasonable doubt.” 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). “This 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.” 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’s instruction impermissibly relieved the State of its burden regarding an essential element of defendant’s first-degree kidnapping charge — that the victim was not released in a safe place.
¶4Although I recognize that a jury instruction does not relieve the State of its burden when it “merely state[s] the substantive law of this state[,]” Id. at 245, 415 S.E.2d at 729, I note that “the General Assembly has neither defined nor given guidance as to the meaning of the term ‘safe place’ in relation to the offense of first degree kidnapping[,]” and “our case law in North Carolina has not set out any test or rule for determining whether a release was in a ‘safe place.’ ” State v. Sakobie, 157 N.C. App. 275, 282, 579 S.E.2d 125, 130 (2003) (citing N.C. Gen. Stat. § 14-39 (2003)). Thus, because our courts have “not [been] provided any clear standard to apply,” we employ “a case-by-case approach” that relies on the particular facts of each case. Id.Despite our Supreme Court’s “agree[ment]” with “the State’s position” in State v. Heatwole, 333 N.C. 152, 161, 423 S.E.2d 735, 737 (1992), I conclude that the “case-by-case approach” has not yet pronounced a strict rule of law regarding whether a particular place is “safe” for the purposes of N.C. Gen. Stat. § 14-39(b).
¶5In Heatwole, the defendant argued that the trial court lacked a sufficient factual basis to accept his guilty plea because there was *126insufficient evidence that the victim had not been released in a safe place. The Supreme Court disagreed, concluding that “[i]nasumch as there was a factual basis for each element of the offense, there is no reason to upset [the] defendant’s guilty plea to first-degree kidnapping^]” 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 “safe place” 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’ commands to do so. Instead, I believe it is “for the jury to resolve the conflicting inferences arising from this evidence.” State v. Jerrett, 309 N.C. 239, 263, 307 S.E.2d 339, 352 (1983) (holding that, although the evidence presented a “close question” 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’s 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’s conviction and order a new trial.