State v. Alston, 246A83

• Decision Date: 06 March 1984
• Docket Number: No. 246A83,246A83
• Citation: 312 S.E.2d 470,310 N.C. 399
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Edward ALSTON.

Page 470

312 S.E.2d 470

310 N.C. 399

STATE of North Carolina v. Edward ALSTON.

No. 246A83.

Supreme Court of North Carolina.

March 6, 1984.

Rufus L. Edmisten, Atty. Gen. by Lucien Capone III, Asst. Atty. Gen., Raleigh, for the State.

Adam Stein, Appellate Defender by Nora B. Henry, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MITCHELL, Justice.

The defendant raises on appeal the question whether the evidence of his guilt of kidnapping and second degree rape was sufficient to support his convictions of those crimes. For reasons discussed herein, we conclude the evidence was insufficient to support his conviction of either crime.

The State's evidence tended to show that at the time the incident occurred the defendant and the prosecuting witness in this case, Cottie Brown, had been involved for approximately six months in a consensual sexual relationship. During the six months the two had conflicts at times and Brown would leave the apartment she shared with the defendant to stay with her mother. She testified that she would return to the defendant and the apartment they shared when he called to tell her to return. Brown testified that she and the defendant had sexual relations throughout their relationship. Although she sometimes enjoyed their sexual relations, she often had sex with the defendant just to accommodate him. On those occasions, she would stand still and remain entirely passive while the defendant undressed her and had intercourse with her.

Brown testified that at times their consensual sexual relations involved some violence. The defendant had struck her several times throughout the relationship when she refused to give him money or refused to do what he wanted. Around May 15, 1981, the defendant struck her after asking her for money that she refused to give him. Brown left the apartment she shared with the defendant and moved in with her mother. She did not have intercourse with the defendant after May 15 until the alleged rape on June 15. After Brown left the defendant, he called her several times and visited her at Durham Technical Institute where she was enrolled in classes. When he visited her they talked about their relationship. Brown testified that she did not tell him she wanted to break off their relationship because she was afraid he would be angry.

On June 15, 1981, Brown arrived at Durham Technical Institute by taxicab to find the defendant standing close to the school door. The defendant blocked her path as she walked toward the door and asked her where she had moved. Brown refused to tell him, and the defendant grabbed her arm, saying that she was going with him. Brown testified that it would have taken some effort to pull away. The two walked toward the parking lot and Brown told the defendant she would walk with him if he let her go. The defendant then released her. She testified that she did not run away from him because she was afraid of him. She stated that other students were nearby.

Brown stated that she and the defendant then began a casually paced walk in the neighborhood around the school. They walked, sometimes side by side, sometimes with Brown slightly behind the defendant. As they walked they talked about their relationship. Brown said the defendant did not hold her or help her along in any way as they walked. The defendant talked about Brown's "dogging" him and making him seem a fool and about Brown's mother's interference in the relationship. When the defendant and Brown left the parking lot, the defendant threatened to "fix" her face so that her mother could see he was not playing. While they were walking out of the parking lot, Brown told the defendant she wanted to go to class. He replied that she was going to miss class that day.

The two continued to walk away from the school. Brown testified that the defendant continually talked about their relationship as they walked, but that she paid little attention to what he said because she was preoccupied with her own thoughts. They passed several people. They walked along several streets and went down a path close to a wooded area where they stopped to talk. The defendant asked again where Brown had moved. She asked him whether he would let her go if she told him her address. The defendant then asked whether the relationship was over and Brown told him it was. He then said that since everyone could see her but him he had a right to make love to her again. Brown said nothing.

The two turned around at that point and began walking towards a street they had walked down previously. Changing directions, they walked in the same fashion they had walked before--side by side with Brown sometimes slightly behind. The defendant did not hold or touch Brown as they walked. Brown testified that the defendant did not say where they were going but that, when he said he wanted to make love, she knew he was going to the house of a friend. She said they had gone to the house on prior occasions to have sex. The defendant and Brown passed the same group of men they had passed previously. Brown did not ask for assistance because some of the men were friends of the defendant, and she assumed they would not help. The defendant and Brown continued to walk to the house of one of the defendant's friends, Lawrence Taylor.

When they entered the house, Taylor was inside. Brown sat in the living room while the defendant and Taylor went to the back of the house and talked. When asked why she did not try to leave when the defendant and Taylor were in the back of the house, Brown replied, "It was nowhere to go. I don't know. I just didn't." The defendant returned to the living room area and turned on the television. He attempted to fix a broken fan. Brown asked Taylor for a cigarette, and he gave her one.

The defendant began talking to Brown about another man she had been seeing. By that time Taylor had gone out of the room and perhaps the house. The defendant asked if Brown was "ready." The evidence tended to show that she told him "no, that I wasn't going to bed with him." She testified that she did not want to have sex with the defendant and did not consent to do so at any time on June 15.

After Brown finished her cigarette, the defendant began kissing her neck. He pulled her up from the chair in which she had been sitting and started undressing her. He noticed that she was having her menstrual period, and she sat down pulling her pants back up. The defendant again took off her pants and blouse. He told her to lay down on a bed which was in the living room. She complied and the defendant pushed apart her legs and had sexual intercourse with her. Brown testified that she did not try to push him away. She cried during the intercourse. Afterwards they talked. The defendant told her he wanted to make sure she was not lying about where she lived and that he would not let her up unless she told him.

After they dressed they talked again about the man Brown had been seeing. They left the house and went to the defendant's mother's house. After talking with the defendant's mother, Brown took a bus home. She talked with her mother about taking out a complaint against the defendant but did not tell her mother she and the defendant had had sex. Brown made a complaint to the police the same day.

The defendant continued to call Brown after June 15, but she refused to see him. One evening he called from a telephone booth and told her he had to talk. When he got to her apartment he threatened to kick her door down and Brown let him inside. Once inside he said he had intended merely to talk to her but that he wanted to make love again after seeing her. Brown said she sat and looked at him, and that he began kissing her. She pulled away and he picked her up and carried her to the bedroom. He performed oral sex on her and she testified that she did not try to fight him off because she found she enjoyed it. The two stayed together until morning and had sexual intercourse several times that night. Brown did not disclose the incident to the police immediately because she said she was embarrassed.

The defendant put on no evidence and moved at the close of the State's evidence for dismissal of both charges based on insufficiency of evidence. The trial court denied the motions and the majority in the Court of Appeals affirmed the trial court.

Upon the defendant's motion to dismiss, the question for the court is whether substantial evidence was introduced of each element of the offense charged and that the defendant was the perpetrator. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The issue of substantiality is a question of law for the court. If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the perpetrator, the motion to dismiss should be allowed. State v. Cutler, 271 N.C. 379, 383, 156 S.E.2d 679, 682 (1967). This is true even though the suspicion is strong. State v. Evans, 279 N.C. 447, 183 S.E.2d 540 (1971).

The court is to consider the evidence in the light most favorable to the State in ruling on a motion to dismiss. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). The State is entitled to every reasonable intendment and inference to be drawn from the evidence; contradictions and discrepancies do not warrant dismissal--they are for the jury to resolve. Id.

In light of these principles, we examine first the evidence relating to the charge of kidnapping. Kidnapping is the unlawful restraint, confinement or removal of a person without that person's consent, if the person is 16 or over, for one of the following purposes:

(1) Holding such other person for ransom or as a hostage or using such other person as a shield; or

(2) Facilitating the...