## Facts

- Edward Alston and Cottie Brown had an approximately six-month sexual relationship that included prior physical violence by Alston.
- Brown sometimes engaged in sex passively to accommodate Alston; she testified she often did not resist physically in those encounters.
- After a dispute in mid-May 1981, Brown left and moved in with her mother and did not have intercourse with Alston again until the charged incident.
- On June 15, 1981, Brown arrived at Durham Technical Institute and encountered Alston, who blocked her path, grabbed her arm, and compelled her to walk with him away from the school.
- During an extended walk, Alston questioned Brown about where she lived and discussed the relationship; sexual comments arose later, after Brown said the relationship was over, when Alston said he “deserved another lovemaking session.”
- They went to a friend’s house where they had previously gone together to have sex.
- At the house, Brown told Alston she was not going to have sex; Alston kissed and undressed her, told her to lie down, pushed her legs apart, and had intercourse.
- Brown did not physically resist during the act; she testified she submitted out of fear based on Alston’s prior violence, not because of any contemporaneous threat made during the incident.
- A jury convicted Alston of first-degree kidnapping and second-degree rape; the intermediate appellate court affirmed.

## Issues

1. Whether the evidence was sufficient to prove first-degree kidnapping, including that Alston removed Brown for the purpose of committing rape at the time of the removal.
2. Whether the evidence was sufficient to prove second-degree rape, including that intercourse was accomplished “by force” (actual or constructive) and against Brown’s will.

## Decision

- The Supreme Court reversed both convictions for insufficient evidence.
- The kidnapping conviction failed because the State did not present substantial evidence that, at the time Alston compelled Brown to leave the school area, he had the intent to commit rape.
- The second-degree rape conviction failed because, although the evidence supported lack of consent, the State did not present substantial evidence of actual or constructive force contemporaneous with the intercourse.

## Legal Principles

- For kidnapping predicated on facilitating a felony, the State must prove that the defendant’s unlawful removal or restraint was done for the purpose of committing the felony, and the felonious purpose must exist at the time of the removal or restraint.
- Second-degree rape requires proof of intercourse both against the victim’s will and by force; these are separate elements.
- “Force” may be actual physical force or constructive force (including threats of serious bodily harm inferred from the circumstances), but generalized fear based only on prior conduct is insufficient absent incident-specific acts or threats that overcome the victim’s will to resist.
- Lack of physical resistance does not, by itself, establish consent; however, the State must still prove the statutory force element beyond the victim’s fear alone.

## Conclusion

The court set aside the kidnapping and second-degree rape convictions because the evidence did not show a rape-related purpose at the time of the removal and did not show incident-specific force or threats sufficient to satisfy the force element of rape, even though the intercourse was against the victim’s will.


State v. Alston, 310 N.C. 399, 312 S.E.2d 470 (N.C. 1984)