dissenting.
The Fulcher and Banks decisions of the North Carolina Supreme Court, discussed in the majority opinion, recognized that kidnapping was a crime separate and distinct from the other crimes committed during the course of the kidnapping. The indictment in the case sub judice did not allege that defendant assaulted the victim with intent to commit rape, only that the victim was “sexually assaulted during the kidnapping.” G.S. 14-39(b) reduces the maximum punishment for kidnapping from life to 25 years if the victim “was released by the defendant in a safe place and had not been sexually assaulted or seriously injured.” In Banks the court observed that “the statute states the punishment for kidnapping as well as a lesser punishment when certain mitigating circumstances appear.” 295 N.C. at 407, 245 S.E. 2d at 749. The majority opinion places the burden on the State to prove the absence of one of these mitigating circumstances. Proof of the *288absence of a mitigating circumstance does not require the State to prove a separate and distinct crime committed during the kidnapping. In the case sub judice the State alleged and proved a sexual assault, thus proving the absence of a mitigating circumstance which would have required a reduction of the maximum sentence from life imprisonment to 25 years. The statutory recognition of a circumstance affecting punishment for kidnapping does not preclude conviction of and punishment for a distinct and separate crime committed during the kidnapping even though the conduct of the defendant in committing that crime results in the absence of a mitigating circumstance. The trial judge in imposing judgment following a conviction may properly consider the totality of the circumstances of the crime, including mitigating circumstances, prior convictions, and other pertinent factors. G.S. 14-39(b) mandates that a mitigating circumstance be considered and provides for a lesser maximum punishment if the mitigating circumstance is present. Neither the statute nor its application in the case before us, violates the Due Process Clause or the Equal Protection Clause.