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State v. Alston

Citation. 310 N.C. 399,312 S.E.2d 470, 1984 N.C.
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Brief Fact Summary.

Defendant was accused of rape and kidnapping his former girlfriend. Defendant filed a motion to dismiss on both charges for failure of the state to demonstrate substantial evidence with respect to both charges.

Synopsis of Rule of Law.

To support a charge of rape, the state must demonstrate either constructive or actual force without legal consent by the victim.


Defendant and the prosecuting witness were dating for six months and lived together. They had numerous fights and at times, the witness would leave the apartment due to the fights to stay with her mother. During that time, the witness stated she had sexual relations merely to accommodate Defendant. After the witness moved out, Defendant repeatedly tried to contact her. Several months later the witness accused the Defendant of kidnapping and rape. Defendant contended that she went willingly with him and had intercourse with him by choice. The Trial Court denied Defendant’s motion to dismiss on both charges. The Appellate Court affirmed and Defendant appealed.


Whether substantial evidence was introduced of each element of the offenses charged and that Defendant was the perpetrator.


Reversed, the state has not shown substantial evidence of actual or constructive force to support a charge of rape.
There was no substantial evidence of forcible confinement, restrain or removal for the purpose of committing rape to support a charge of kidnapping.

A Defendant can be guilty of raping even his mistress because consent to sexual intercourse freely given can be withdrawn at any time prior to penetration.

Evidence of physical resistance by the victim is not necessary to prove lack of consent in a rape case.


The Court analyzed each element of the crime of rape. Specifically, the Court focused on the use or threat of force and whether or not the victim consented to sexual intercourse. What was missing from the analysis was that the victim in this case had physical altercations with Defendant in the past. The Court appeared unwilling to credit the victim’s past experience of violence by Defendant to the specific act of sexual intercourse at question.

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