State v. Alston

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 *459asportation 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 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 *460present 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.

Judge Hedrick concurs. Judge BECTON dissents in part and concurs in part.