STATE of North Carolina
v.
Edward ALSTON.
No. 8214SC496.
Court of Appeals of North Carolina.
April 5, 1983.*859 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Lucien Capone, III, Raleigh, for the State.
Appellate Defender Adam Stein by Asst. Appellate Defender Nora B. Henry, Raleigh, for defendant-appellant.
WEBB, Judge.
Defendant assigns error to the denial of his motion to dismiss the charge of kidnapping. G.S. 14-39 provides in part:
"(a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person ... shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:
....
(2) Facilitating the commission of any felony ...."
The defendant argues there was insufficient evidence to support a conviction of kidnapping. The unlawful restraint or asportation of a person against that person's will for the purpose of committing a felony is kidnapping if the restraint or asportation is not an inherent feature of such other felony. State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978). The defendant argues that in this case, there was not sufficient evidence of a restraint or asportation and if there were, there was not sufficient evidence that it was done to facilitate the commission of a felony.
We believe that the evidence that the defendant blocked Ms. Brown's path as she approached the school; that he held her arm tightly and told her she was going with him; that when she protested, he pulled her to the parking lot some distance away; and that he threatened to "fix her face" was evidence from which the jury could find that he restrained and carried her away against her will. We believe that in light of what happened after the defendant and Ms. Brown arrived at the home of defendant's friend, there was sufficient evidence for the jury to find the restraint and asportation were for the purpose of raping Ms. Brown. Even if he did not form the intent to rape her until she told him their relationship was finished, we believe the evidence was sufficient for the jury to find that there was a restraint and asportation for the purpose of committing a felony. There was evidence that she continued to accompany him through fear and not of her own free will. The defendant's first assignment of error is overruled.
In his second assignment of error the defendant contends there was not sufficient evidence that the sexual intercourse was by force and against the will of Ms. Brown for the jury to find him guilty of rape. "Rape is the carnal knowledge of a female person by force and against her will.... The force necessary to constitute rape need not be actual physical force. Fear, fright or coercion may take the place of force .... While consent by the female is a complete defense, consent which is induced by fear of violence is void and is no legal consent." State v. Primes, 275 N.C. 61, 67, 165 S.E.2d 225, 229 (1968) (Citations *860 omitted). We believe that the evidence as to the past relationship between Ms. Brown and the defendant in which he had been brutal to her at times, coupled with his action on 15 June 1981 when he twisted her arm, told her he would "fix her face", and did not release his grip on her arm until she agreed to walk with him is evidence from which the jury could find the defendant used force or a threat of force to have intercourse with Ms. Brown and any consent on her part was induced by fear of violence. We hold there was sufficient evidence of force or threatened force and lack of consent by Ms. Brown for the jury to find the defendant guilty of rape.
The defendant relies on State v. Ricks, 34 N.C.App. 734, 239 S.E.2d 602 (1978). In that case the defendant was convicted of raping the 12-year-old daughter of the woman with whom he lived. The 12-year-old girl testified that the defendant had spanked the children in the house when they did not obey him. On the date in question, he offered her $2.00 if she would have intercourse with him. She refused but followed him to a pond near her house. He asked her to take off her panties and lie down, which she did. The defendant had intercourse with the child but stopped when she asked him to do so. In holding the evidence was not sufficient to support a conviction of rape, this Court emphasized that the child followed the defendant away from her house without any compulsion to do so. She did as the defendant told her but there was no force or threatened force to require her to do so. She was in shouting distance of her house and if she had called out, her mother could have come to her aid. Those factors are not present in this case. There was evidence that Ms. Brown did not voluntarily accompany the defendant. She was in a position where she would receive no aid had she protested in the defendant's friend's house. The jury could have found that resistance on her part would be futile. We believe Ricks is distinguishable from this case. The defendant's second assignment of error is overruled.
No error.
HEDRICK, J., concurs.
BECTON, J., dissents in part and concurs in part.
BECTON, Judge, dissenting in part and concurring in part.
The facts surrounding the sexual intercourse on 15 June 1981 that caused Ms. Brown to charge defendant with rape were (a) not unlike the facts surrounding prior acts of sexual intercourse between the parties[1] and (b) not as egregious as facts surrounding a subsequent act of sexual intercourse between the parties.[2] From defendant's perspective, then, Ms. Brown was engaging in sex on 15 June 1981 to accommodate him just as she had done in the past. On the rape charge, however, defendant's perception is not controlling. We must look at Ms. Brown's state of mind to see if the sex act was without her consent and against her will. Ms. Brown testified that she was afraid and that she had told the defendant that she did not want to have sex with him. Thus, there is evidence from *861 which the jury could find that her submission was without her consent and against her will. I, therefore, concur in the majority's resolution of the rape charge.
I cannot concur with the majority's resolution of the kidnapping charge, however. On the kidnapping charge, it is defendant's perceptionhis intent, his state of mind that is controlling. Although there may have been some evidence suggesting that the defendant restrained or confined Ms. Brown, I find no evidence from which the jury could conclude that defendant restrained or confined her "for the purpose of raping Ms. Brown." Ante p. 5. There is no evidence that the defendant, at the time he approached, restrained or confined Ms. Brown, intended at that time to rape her. I, therefore, disagree with the majority's statement "that in the light of what happened after the defendant and Ms. Brown arrived at the home of the defendant's friend, there was evidence sufficient for the jury to find the restraint and asportation were for the purpose of raping Ms. Brown." Ante p. 5.
The evidence shows that defendant wanted to get Ms. Brown alone so he could talk to her about their relationship. Sex was not mentioned as they talked while walking several blocks. Only when Ms. Brown told defendant it was over between them did defendant say that he "thought she owed him one more time of making love." The record shows that at that point Ms. Brown and the defendant turned around, walked back to the street they had earlier travelled, and went to defendant's friend's house. Ms. Brown walked unassisted and defendant made no threats to her. Simply put, the evidence, in my view, was not sufficient for the jury to find that there was a restraint and asportation for the purpose of committing a felony. I vote, therefore, to reverse the kidnapping charge.
NOTES
[1] Prior to 15 June 1981, but both before and after Ms. Brown and defendant started living together, they had sexual intercourse with each other. On those occasions when the defendant wanted to have sex but Ms. Brown did not, Ms. Brown would stand still and defendant would undress her and have sex with her. Sometimes they would have sex during her menstrual cycle. Sometimes defendant would get forceful and strike her while engaging in sexual intercourse. Sometimes Ms. Brown had sex with defendant just to accommodate him; sometimes she enjoyed their sexual relationship.
[2] After 15 June 1981indeed, after defendant had been arrested on the rape and kidnap charges in the case sub judicedefendant called Ms. Brown from a telephone booth and told her that he had a gun and wanted to come to her house and that he would break the door down and not be responsible for his actions if she did not let him in. When Ms. Brown told defendant she didn't want him to come to her house, defendant "dropped the phone" preventing Ms. Brown from getting a dial tone and ran to Ms. Brown's house. Ms. Brown "was so scared that he was going to kick the door down that [she] opened the door", and defendant engaged in sex with her against her will.