# State v. Alston > Court of Appeals of North Carolina · April 5, 1983 · 61 N.C. App. 454 URL: https://www.frixlaw.com/law-library/cases/9570529 ## Case - **Full name:** State of North Carolina v. Edward Alston - **Court:** Court of Appeals of North Carolina - **Decided:** April 5, 1983 - **Citations:** 61 N.C. App. 454; 300 S.E.2d 857; 1983 N.C. App. LEXIS 2717 - **Precedential status:** Published - **Opinion:** Concurring in part by Becton - **Judges:** Becton, Hedrick, Webb - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9570529 ## Opinion text Judge Becton 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. *461 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 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 perception — his 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. . 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. . After 15 June 1981 — indeed, after defendant had been arrested on the rape and kidnap charges in the case sub judice — defendant 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9570529. Public record. Not legal advice.