{ "id": 6787866, "name": "STATE OF NORTH CAROLINA v. JOHN OMAR LALINDE, Defendant", "name_abbreviation": "State v. Lalinde", "decision_date": "2013-12-03", "docket_number": "No. COA13-115", "first_page": "308", "last_page": "317", "citations": [ { "type": "official", "cite": "231 N.C. App. 308" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "650 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639310 ], "year": 2007, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/se2d/650/0029-01" ] }, { "cite": "63 S.E.2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "205", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "233 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599905 ], "year": 1951, "pin_cites": [ { "page": "113", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0109-01" ] }, { "cite": "689 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2009, "pin_cites": [ { "page": "417, 418" }, { "page": "418" } ], "opinion_index": 0 }, { "cite": "201 N.C. App. 161", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4173140 ], "year": 2009, "pin_cites": [ { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/nc-app/201/0161-01" ] }, { "cite": "283 S.E.2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1981, "pin_cites": [ { "page": "729" }, { "page": "728" }, { "page": "728-29" }, { "page": "729" } ], "opinion_index": 0 }, { "cite": "304 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567490 ], "year": 1981, "pin_cites": [ { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0293-01" ] }, { "cite": "243 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "351", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "294 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574036 ], "year": 1978, "pin_cites": [ { "page": "523", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0503-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-43.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2011, "opinion_index": 0 }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "430 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "918" }, { "page": "914" } ], "opinion_index": 0 }, { "cite": "334 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529175 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "75" }, { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0067-01" ] }, { "cite": "526 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "455", "parenthetical": "quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)" }, { "page": "455" } ], "opinion_index": 0 }, { "cite": "351 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155599 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "378", "parenthetical": "quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)" }, { "page": "378-79" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0373-01" ] }, { "cite": "186 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8154614 ], "year": 2007, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0057-01" ] }, { "cite": "731 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2012, "opinion_index": 0 }, { "cite": "366 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4348456, 4354672, 4357297, 4351762, 4348408, 4360122, 4357084 ], "year": 2012, "opinion_index": 0, "case_paths": [ "/nc/366/0233-04", "/nc/366/0233-01", "/nc/366/0233-05", "/nc/366/0233-02", "/nc/366/0233-06", "/nc/366/0233-03", "/nc/366/0233-07" ] }, { "cite": "725 S.E.2d 923", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "221 N.C. App. 245", "category": "reporters:state", "reporter": "N.C. App.", "opinion_index": 0 }, { "cite": "55 S.E.2d 333", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "pin_cites": [ { "page": "333-34" } ], "opinion_index": 0 }, { "cite": "230 N.C. 722", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632210 ], "year": 1949, "pin_cites": [ { "page": "723" } ], "opinion_index": 0, "case_paths": [ "/nc/230/0722-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-41", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "287 S.E.2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "866" } ], "opinion_index": 0 }, { "cite": "305 N.C. 196", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567217 ], "year": 1982, "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0196-01" ] }, { "cite": "334 S.E.2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "428", "parenthetical": "\"[Although the facts supporting defendant's commission of the offenses were in dispute, the fact upon which jurisdiction was based, i.e., the location where the offenses were committed, was not in issue. Therefore, the requested instruction was properly denied.\"" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 164", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520959 ], "year": 1985, "pin_cites": [ { "page": "169", "parenthetical": "\"[Although the facts supporting defendant's commission of the offenses were in dispute, the fact upon which jurisdiction was based, i.e., the location where the offenses were committed, was not in issue. Therefore, the requested instruction was properly denied.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0164-01" ] }, { "cite": "517 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "667", "parenthetical": "holding that trial court properly refused to instruct on jurisdiction when there was no dispute that offense occurred in North Carolina and only issue was whether defendant committed that offense" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11144448 ], "year": 1999, "pin_cites": [ { "page": "341", "parenthetical": "holding that trial court properly refused to instruct on jurisdiction when there was no dispute that offense occurred in North Carolina and only issue was whether defendant committed that offense" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0338-01" ] }, { "cite": "602 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "359 N.C. 60", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798802 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/359/0060-01" ] }, { "cite": "586 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "517", "parenthetical": "holding trial court erred by failing to instruct jury on jurisdiction when defendant disputed whether rapes occurred in Virginia or North Carolina" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 503", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956923 ], "year": 2003, "pin_cites": [ { "page": "508", "parenthetical": "holding trial court erred by failing to instruct jury on jurisdiction when defendant disputed whether rapes occurred in Virginia or North Carolina" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0503-01" ] }, { "cite": "743 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2013, "pin_cites": [ { "page": "61", "parenthetical": "\"Where the facts upon which the assertion of jurisdiction is based are contested, the trial court is required to instruct the jury that (1) the State has the burden of proving jurisdiction beyond a reasonable doubt; and (2" }, { "page": "61-62" }, { "page": "56" }, { "page": "62" }, { "page": "62" } ], "opinion_index": 0 }, { "cite": "344 S.E.2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "356" }, { "page": "356" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524022 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "500" }, { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0499-01" ] } ], "analysis": { "cardinality": 1010, "char_count": 23795, "ocr_confidence": 0.712, "pagerank": { "raw": 5.184523693380119e-08, "percentile": 0.3254685890953488 }, "sha256": "e8e3063c4109281de63dd6d27a8298cef0b0db3a1f70ccb42258e66224424c39", "simhash": "1:8346d6b0d23f2a54", "word_count": 4022 }, "last_updated": "2023-07-14T19:32:40.304740+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ROBERT C. HUNTER and McCULLOUGH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JOHN OMAR LALINDE, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nDefendant John Omar Lalinde appeals from his convictions of' child abduction and felonious restraint. On appeal, defendant primarily argues that the trial court erred in denying his request for a special instruction regarding whether North Carolina had jurisdiction over the child abduction charge. Because defendant does not dispute the facts relevant to the jurisdiction question and those facts establish that one element of the crime occurred in North Carolina, there was no issue for the jury to resolve, and the trial court properly declined to instruct the jury regarding jurisdiction.\nWith respect to the charge of felonious restraint, defendant argues that the State failed to prove that he restrained the alleged victim. We hold, however, that the State\u2019s evidence was sufficient to show that defendant restrained the victim by defrauding her into entering his car and driving to Florida with him. The trial court, therefore, properly denied defendant\u2019s motion to dismiss the charge of felonious restraint.\nFacts\nThe State\u2019s evidence tends to show the following facts. When \u201cAnna\u201d was nine years old, she lived across the street from defendant in Orlando, Florida. She and her neighbor Jessica got to know defendant when they played with his dog in the yard. Anna began regularly talking to defendant on the phone when she was 10 years old after her family had moved to a different house a few miles away and defendant gave her his phone number. She would also see defendant when she went to Jessica\u2019s house. When Anna was 11 or 12 years old, defendant persuaded Anna to sneak out of her house in the middle of the night so that he could give her a cell phone that she could use to call him. Her parents confiscated the phone a couple days later, but they did not know that the phone came from defendant, and Anna continued calling him. Anna\u2019s parents did not know about the phone calls or that Anna would see defendant when she went to Jessica\u2019s house.\nIn 2009, when Anna was 13 years old, she moved to North Carolina. She continued to telephone defendant, and in August 2010, defendant sent her a teddy bear, a two-piece bathing suit, and a cell phone on defendant\u2019s cell phone plan that had a camera feature. At defendant\u2019s request, Anna sent defendant photos of herself in the bathing suit and photos of herself naked. During their conversations, defendant and Anna told each other they loved one another. Defendant told Anna that if she left North Carolina, she could stay with him in Orlando and complete online classes. He also told her that he wanted to have sex with her.\nShortly after moving to North Carolina, Anna confided to defendant that while living in Orlando, her brother Anthony had raped and sexually molested her. Anthony initially did not move with the family to North Carolina, but instead decided to remain in Florida with his aunt.\nIn late September 2010, Anna\u2019s parents told her that Anthony, who was 19 years old at the time, was on aflight from Florida to North Carolina and was going to move back in with the family. At that point, Anna told her parents about the sexual abuse for the first time. Nevertheless, her parents still allowed Anthony to move back into the house.\nAt 3:00 in the morning on 2 October 2010, Anthony tried to enter Anna\u2019s locked bedroom. Anna escaped through her bedroom window and spent the night in the playhouse in the back yard. She called defendant to tell him what had happened, and he suggested that she come with him to Florida and stay at his house. Anna agreed to leave with defendant, and he drove from Florida to North Carolina to pick her up. Defendant arranged to meet Anna at the end of her street so that no one would see him. Anna snuck out of the house and her 19-year-old cousin Charles helped her carry a laundry basket full of her clothes to the end of the road. When defendant arrived, he greeted Anna with a Mss on the cheek. He asked Anna why Charles was there and said, \u201cNobody was supposed to see me.\u201d Anna got into the truck with defendant and drove with him back to his house in Florida. Anna\u2019s parents did not know she was leaving.\nWhen Anna and defendant arrived at his house in Florida, she unpacked and took a shower. While she was in the shower, defendant hid her clothes, and when she got out of the shower, she found defendant sitting on his bed naked. Defendant laid Anna down on the bed, pinned her arms above her head, and, without her consent, had sexual intercourse with her.\nThe following day, defendant left for work, and defendant\u2019s mother took Anna to her house a few minutes away. When defendant returned to his mother\u2019s house for lunch, he removed the SIM card from Anna\u2019s phone and destroyed it. After defendant came home from work, police came by his mother\u2019s house looking for Anna. Defendant and his mother told Anna to go out the window and hide in the backyard. At that time, defendant was interviewed by phone by Detective John Leatherwood from the Pender County Sheriff\u2019s Office who suspected that he had Anna. Defendant denied knowing where Anna was or having talked to her in the previous two weeks. Police returned again later in the evening, and Detective Leatherwood informed defendant by phone that the police had tracked defendant\u2019s and Anna\u2019s cell phones from North Carolina to Florida. Defendant continued to deny having seen or heard from Anna and claimed he had lost his phone.\nAt some point that evening, Anna was able to call her grandfather, and he and her aunt came to pick her up from defendant\u2019s mother\u2019s house. Afterwards, defendant called Detective Leatherwood and told him that Anna had tried to come to his house but was unable to get in, so she came to his mother\u2019s house, where she was picked up by her aunt.\nDefendant was indicted for child abduction, felonious restraint,' second-degree rape, statutory rape, and kidnapping. The rape charges were dismissed for lack of jurisdiction. After a jury trial, the jury acquitted defendant of first and second degree kidnapping, but found him guilty of child abduction and felonious restraint. The trial court imposed a presumptive-range term of 16 to 20 months imprisonment for abduction of a child, followed by a consecutive presumptive-range term of 16 to 20 months imprisonment for felonious restraint. Defendant timely appealed to this Court.\nI\nDefendant first argues that the trial court erred in denying his request for a jury instruction and special verdict as to North Carolina\u2019s jurisdiction over the child abduction charge. Generally, when a crime occurs in more than one state, \u201cany state in which an essential element of a crime occurred may exercise jurisdiction to try the perpetrator.\u201d State v. First Resort Properties, 81 N.C. App. 499, 500, 344 S.E.2d 354, 356 (1986).\nJurisdiction over interstate criminal cases in North Carolina is governed by N.C. Gen. Stat. \u00a7 15A-134 (2011), which provides \u201c[i]f a charged offense occurred in part in North Carolina and in part outside North Carolina, a person charged with that offense may be tried in this State if he has not been placed in jeopardy for the identical offense in another state.\u201d This statute confers jurisdiction \u201cwhere any part of the crime occurred.\u201d First Resort Properties, 81 N.C. App. at 501, 344 S.E.2d at 356.\nA special jury instruction on jurisdiction is only proper when a defendant challenges the factual basis for jurisdiction. State v. Tucker, 227 N.C. App.627, 637, 743 S.E.2d 55, 61 (2013) (\u201cWhere the facts upon which the assertion of jurisdiction is based are contested, the trial court is required to instruct the jury that (1) the State has the burden of proving jurisdiction beyond a reasonable doubt; and (2) if the jury is not satisfied, it should return a special verdict indicating a lack of jurisdiction.\u201d). See, e.g., State v. Holden, 160 N.C. App. 503, 508, 586 S.E.2d 513, 517 (2003) (holding trial court erred by failing to instruct jury on jurisdiction when defendant disputed whether rapes occurred in Virginia or North Carolina), aff\u2019d per curiam by an equally divided court, 359 N.C. 60, 602 S.E.2d 360 (2004).\nWhen the defendant challenges whether any offense occurred or whether he was the perpetrator, but he does not dispute the facts upon which jurisdiction is based, then the trial court properly refuses to instruct the jury on the issue of jurisdiction. See, e.g., State v. White, 134 N.C. App. 338, 341, 517 S.E.2d 664, 667 (1999) (holding that trial court properly refused to instruct on jurisdiction when there was no dispute that offense occurred in North Carolina and only issue was whether defendant committed that offense); State v. Callahan, 77 N.C. App. 164, 169, 334 S.E.2d 424, 428 (1985) (\u201c[Although the facts supporting defendant\u2019s commission of the offenses were in dispute, the fact upon which jurisdiction was based, i.e., the location where the offenses were committed, was not in issue. Therefore, the requested instruction was properly denied.\u201d).\nSimilarly, when \u201ca defendant\u2019s challenge is not to the factual basis for jurisdiction but rather to \u2018the theory of jurisdiction relied upon by the State,\u2019 the trial court is not required to give these instructions since the issue regarding \u2018[w]hether the theory supports jurisdiction is a legal question\u2019 for the court.\u201d Tucker, 227 N.C. App. at 637, 743 S.E.2d at 61-62 (quoting State v. Darroch, 305 N.C. 196, 212, 287 S.E.2d 856, 866 (1982)). In Tucker, the defendant was charged with embezzlement. Id. at 628, 743 S.E.2d at 56. He did not dispute the underlying facts but argued that \u201cjurisdiction lies solely in the state where defendant either (1) lawfully obtained possession of his principal\u2019s property with fraudulent intent; or (2) misapplied or converted the funds for his own use.\u201d Id. at 637-38, 743 S.E.2d at 62. This Court concluded that the defendant\u2019s jurisdictional challenge addressed only the State\u2019s legal theory of jurisdiction. Id. at 638, 743 S.E.2d at 62. It was thus a legal question for the court and a jury instruction was not required. Id.\nHere, a person is guilty of child abduction if he or she \u201cabducts or induces any minor child who is at least four years younger than the person to leave any person, agency, or institution lawfully entitled to the child\u2019s custody, placement, or care . . . .\u201d N.C. Gen. Stat. \u00a7 14-41(a) (2011). It is \u201cnot necessary for the State to show she was carried away by force, but evidence of fraud, persuasion, or other inducement exercising controlling influence upon the child\u2019s conduct would be sufficient to sustain a conviction\u201d for this offense. State v. Ashburn, 230 N.C. 722, 723, 55 S.E.2d 333, 333-34 (1949) (holding evidence that 11-yeax-old girl consented to defendant\u2019s marriage proposal, defendant drove to girl\u2019s school during recess, \u201csaid to her, \u2018Come on, let\u2019s go,\u2019 and she got in the car with him and he drove away\u201d and \u201c[t]his was without the knowledge or consent of her mother\u201d was sufficient to sustain conviction for child abduction).\nIn this case, the evidence shows, and defendant does not dispute, that Anna was either abducted or defendant\u2019s final act of inducing her to leave her parents occurred when defendant picked Anna up down the street from her parents\u2019 home in Rocky Point, North Carolina. Therefore, the child abduction occurred, at least in part, in North Carolina. Further, since defendant did not contend that he had \u201cbeen placed in jeopardy for the identical offense\u201d in Florida, jurisdiction in North Carolina was proper. See N.C. Gen. Stat. \u00a7 15A-134.\nDefendant, however, focuses on the element of inducement and argues that any inducement occurred with his telephone calls to Anna made from Florida. Defendant further argues that a disputed issue of fact exists regarding whether any of the 10 phone calls from defendant to Anna on the day he drove to pick her up were placed while he was in North Carolina.\nIn support of his argument that this factual dispute draws into question North Carolina\u2019s jurisdiction, defendant cites State v. Kirk, 221 N.C. App. 245, 725 S.E.2d 923, 2012 WL1995293, at *10, 2012 N.C. App. LEXIS 674, at *26 (unpublished), disc. review denied, 366 N.C. 233, 731 S.E.2d 413 (2012), another child abduction case. In Kirk, this Court held that emails sent by the defendant from a North Carolina computer to the victim saying \u201c \u2018I think I love you\u2019 \u201d and \u201c \u2018I\u2019m coming to get you\u2019 \u201d were sufficient to show that the essential act of inducement took place in North Carolina. Id. While Kirk, as an unpublished opinion, is not controlling, its reasoning does not suggest a different result in this case. Kirk simply holds that jurisdiction in North Carolina may be based on acts of inducement prior to the victim\u2019s actually leaving the custody of her parents. Kirk does not - as it could not -- hold that only the element of inducement and no other element may be the basis for jurisdiction in North Carolina with respect to a charge of child abduction.\nIn this case, therefore, any dispute over where the acts of inducement took place are immaterial to the question of North Carolina\u2019s jurisdiction because defendant does not dispute that he picked Anna up - and Anna left her parents\u2019 custody -- in Rocky Point. Since there was no factual dispute regarding the basis for jurisdiction, the issue was a question of law to be decided by the trial court. The trial court properly found that an essential act of the crime of child abduction took place in North Carolina and did not err in denying defendant\u2019s request for a jury instruction on jurisdiction.\nII\nDefendant next argues that the trial court should have granted his motion to dismiss the charge of felonious restraint. \u201cThis Court reviews the trial court\u2019s denial of a motion to dismiss de novo.\" State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).\nIt is well established that \u201c \u2018[u]pon defendant\u2019s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u2019 \u201d State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). When reviewing motions to dismiss, \u201c \u2018we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.\u2019 \u201d Fritsch, 351 N.C. at 378-79, 526 S.E.2d at 455 (quoting Barnes, 334 N.C. at 75, 430 S.E.2d at 914).\nA defendant may be found guilty of felonious restraint \u201cif he unlawfully restrains another person without that person\u2019s consent, or the consent of the person\u2019s parent or legal custodian if the person is less than 16 years old, and moves the person from the place of the initial restraint by transporting him in a motor vehicle or other conveyance.\u201d N.C. Gen. Stat. \u00a7 14-43.3 (2011). Defendant argues that there was insufficient evidence that he \u201crestrained\u201d Anna.\nN.C. Gen. Stat. \u00a7 14-43.3 specifies that \u201c[f]elonious restraint is considered a lesser included offense of kidnapping.\u201d Consequently, the requirement for \u201crestraint\u201d for a charge of kidnapping is the same as the requirement of \u201crestraint\u201d for a charge of felonious restraint.\nDefendant argues that his motion to dismiss should have been allowed because he did not prevent Anna from leaving his truck, he did not physically restrain her, he did not force her out of her house, and he did not make any threats to her. Our courts have, however, explained that \u201c[t]he term \u2018restrain,\u2019 while broad enough to include a restriction upon freedom of movement by confinement, connotes also such a restriction, by force, threat or fraud, without a confinement.\u201d State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978) (emphasis added). Specifically, \u201crestraint\u201d can also occur when \u201cone person\u2019s freedom of movement is restricted due to another\u2019s fraud or trickery.\u201d State v. Sturdivant, 304 N.C. 293, 307, 283 S.E.2d 719, 729 (1981).\nIn Sturdivant, the Supreme Court held that the evidence was sufficient to show \u201can effective restraint of the victim in her automobile\u201d when, after helping the victim who was experiencing car trouble on her way home to South Carolina, the defendant entered the victim\u2019s car \u201cunder the fraudulent pretext of seeking a ride to the home of a crippled friend.\u201d Id. at 306, 283 S.E.2d at 728. The Court explained that \u201c [t]his constraint of the victim continued as defendant directed her to turn off the highway onto a dirt road, whereupon he cut off the car engine, made physical advances upon her, refused her repeated requests for him to leave the vehicle and later, while persisting in the pretense of going to the home of a crippled friend, made her drive still further along that deserted road.\u201d Id., 283 S.E.2d at 728-29. In concluding that this restraint was sufficient to support the charge of kidnapping, the Court noted: \u201cA kidnapping can be just as effectively accomplished by fraudulent means as by the use of force, threats or intimidation.\u201d Id. at 307, 283 S.E.2d at 729.\nApplying these principles, this Court held in State v. Williams, 201 N.C. App. 161, 172, 689 S.E.2d 412, 417, 418 (2009), that there was sufficient evidence that the defendant \u201cconfined, restrained, or removed\u201d the victim when he \u201cinduced [the victim] to enter his car on the pretext of paying her money in return for a sexual act\u201d when in reality his intent was to assault and rob the victim. This Court concluded that \u201ca reasonable mind could conclude from the evidence that had [the victim] known of such intent, she would not have consented to have been moved by defendant from the place where she first encountered him.\u201d Id., 689 S.E.2d at 418.\nIn this case, as in Sturdivant and Williams, the evidence, when viewed in the light most favorable to the State, is sufficient to allow a reasonable jury to find that defendant restrained Anna in his truck through fraud. The evidence shows that defendant, a man in this thirties, had formed an inappropriate relationship with a nine-year-old girl and gained her trust and strengthened the secret relationship over the following five-year period. Anna confided in him that she had been sexually abused by her older brother and that she feared he would rape her again when he moved back to North Carolina. When her brother tried to break into her room, Anna called defendant, and he offered to come get her and bring her to Florida to live with him - in other words, he offered to rescue her from her brother. When Anna met him at the end of her street, he did not greet her in a sexual way, but rather gave her a deceptively innocent kiss on the cheek. Then, shortly after they arrived at his house in Florida, he took away Anna\u2019s clothes, pinned her to the bed, and had non-consensual sex with her.\nA reasonable juror could conclude from this evidence that defendant duped Anna into getting into his car and traveling to Florida by assuring her that his intent was to rescue her from further sexual assaults by her brother when instead his intent was to isolate her so that he could sexually assault her himself. A reasonable juror could further conclude that defendant\u2019s failure to tell Anna that he intended to have sex with her and his kiss on her cheek were eafch intended to conceal from her his true intentions and that she would not have gone with him had he been honest with her.\nDefendant, however, argues that there is no evidence of fraud because representations that he promised to help Anna escape from her brother were not false. It is well established, however, that fraud may be based upon an omission.\nFraud has no all-embracing definition. Because of the multifarious means by which human ingenuity is able to devise means to gain advantages by false suggestions and concealment of the truth, and in order that each case may be determined on its own facts, it has been wisely stated that fraud is better left undefined, lest, as Lord Hardwicke put it, the craft of men should find a way of committing fraud which might escape a rule or definition. However, in general terms fraud may be said to embrace all acts, omissions, and concealments involving a breach of legal or equitable duty and resulting in damage to another, or the taking of undue or unconscientious advantage of another.\nVail v. Vail, 233 N.C. 109, 113, 63 S.E.2d 202, 205 (1951) (emphasis added) (internal citations and quotation marks omitted). Thus, fraud may be based upon defendant\u2019s failure to make clear to Anna his intentions to have sex with her when he knew she thought she was being rescued.\nDefendant argues further that, in any event, Anna was not deceived because she knew he wanted to have sex with her, and there is no evidence that Anna would not have gone to Orlando with him had he told her of his actual intentions. He points to evidence that he had told Anna on prior occasions that he wanted to have sex with her and that, when asked whether she would have gone with defendant if he had told her that they were going to have sex, she responded, \u201cI\u2019m not sure.\u201d This argument, however, views the evidence in the light most favorable to the defendant, contrary to the well-established standard of review for motions to dismiss. A reasonable juror could have concluded from all the evidence that Anna did not understand that she would be forced to have sex with defendant and that she would not have left with defendant if she had known that she would have no choice.\nWe, therefore, conclude that the State presented substantial evidence that defendant restrained Anna in his truck by inducing her through fraud to enter his truck and drive to Florida. Accordingly, the trial court properly denied defendant\u2019s motion to dismiss the charge of felonious restraint.\nNo error.\nJudges ROBERT C. HUNTER and McCULLOUGH concur.\n. The pseudonym \u201cAnna\u201d is used throughout this opinion to protect the minor\u2019s privacy and for ease of reading.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General V. Lori Fuller, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHN OMAR LALINDE, Defendant\nNo. COA13-115\nFiled 3 December 2013\n1. Jurisdiction \u2014 special instruction denied \u2014 no factual dispute\nThe trial court properly declined to give the jury a special instruction regarding jurisdiction in a prosecution for child abduction where the evidence showed, and defendant did not dispute, that the child was either abducted or that defendant\u2019s final act of inducing her to leave her parents occurred in North Carolina. A special jury instruction on jurisdiction is only proper when a defendant challenges the factual basis for jurisdiction.\n2. Felonious Restraint \u2014 restraint by fraud \u2014 evidence sufficient\nThe trial court properly denied defendant\u2019s motion to dismiss the charge of felonious restraint arising from the abduction of a child where the State\u2019s evidence was sufficient to show that defendant restrained the victim by defrauding her into entering his car and driving to Florida with him. While defendant argued that the child was not deceived because she knew he wanted to have sex with her, this argument viewed the evidence in the light most favorable to defendant, contrary to the well-established standard of review for motions to dismiss.\nAppeal by defendant from judgments entered 1 October 2012 by Judge W. Douglas Parsons in Pender County Superior Court. Heard in the Court of Appeals 28 August 2013.\nAttorney General Roy Cooper, by Special Deputy Attorney General V. Lori Fuller, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant-appellant." }, "file_name": "0308-01", "first_page_order": 318, "last_page_order": 327 }