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State v. Lalinde, Court of Appeals of North Carolina

750 S.E.2d 868 (2013)

Nature of the case:

Child abduction and felonious restraint involving thirteen-year-old female victim.

Facts and Issues on Appeal:

The defendant was charged with kidnapping, child abduction, and felonious restraint. The defendant was the victim's neighbor. She occasionally played with the defendant’s dog outside. Even after the victim's family moved a few miles away the following year, the defendant maintained contact with her whenever she visited friends in her old neighborhood. He also gave her his number and regularly spoke with her on the phone. A couple of years later, he convinced the victim to sneak out of her house in the middle of the night to see him, so that he could give her a cell phone. Her parents confiscated it, not knowing whose phone it was, but the defendant still maintained telephone contact with her. When she was thirteen, the victim moved with her family to North Carolina. The defendant sent her inappropriate gifts and asked her to send back nude photos of herself. He also continued to communicate with her by phone, in which he told her that he loved her and wanted to have sex with her. The victim informed the defendant that her brother had sexually assaulted her, and that after moving back home, he tried to enter her locked bedroom. The defendant drove to North Carolina to pick her up and take her back to his home in Florida. Shortly after they arrived, the defendant raped her. He and his mother then lied to the police, claiming that the victim was not there and that they did not know where she was. The jury acquitted the defendant of kidnapping, but convicted him of child abduction and felonious restraint. On appeal, regarding the felonious restraint charge, the defendant argued that the trial court erred in denying his motion to dismiss. He claimed the evidence was insufficient because he did not use physical force to get the victim into his vehicle or keep her from leaving, and he did not make any threats. The Court of Appeals disagreed, reasoning as follows:

Ruling & Rationale:

Felonious restraint can be effectuated by fraud, not just by force or threat. The court highlighted the inappropriate secret relationship the defendant maintained with the young victim – and the defendant's illusion of "rescuing" her from abuse at the hands of her brother – as evidence of fraud. Although the defendant claimed he made his sexual intentions clear to the victim, a reasonable juror could have concluded that this particular victim would not have understood that he intended to force her into a sex act.

Editorial Comment

Although the defendant's convictions were ultimately upheld, this opinion is troubling because of its suggestion that individuals who forcibly kidnap children for the purpose of committing a sexual assault may escape responsibility for their actions by asserting as a defense at trial that there was no force because the child "knew" the adult wanted sex. Prosecutors should be arguing against the evolution of this defense as a doctrine in criminal common law, and urge courts to embrace instead, the policy position that if a thirteen-year-old cannot consent to sex, it strains all reason to permit the same aged child to consent to being kidnapped for the purpose of sex.

Submitted By: Ericka McFee -- Law Student

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