State v. Lalinde, 231 N.C. App. 308 (Dec. 3, 2013)

In a felonious restraint case, the evidence was sufficient to show that the defendant restrained the victim by defrauding her into entering his car and driving to Florida with him. The defendant, a man in this thirties, formed an inappropriate relationship with the nine-year-old female victim. He gained her trust and strengthened the secret relationship over a five-year period. The victim confided to him that she had been sexually abused by her 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, the victim called the defendant, and he offered to get her and bring her to Florida to live with him. The court viewed this action as an offer to rescue the victim from her brother. When the victim met the defendant 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 arriving in Florida, he took away her clothes, pinned her to the bed, and had non-consensual sex with her. On these facts, a reasonable juror could conclude that the defendant duped the victim 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. Furthermore, a reasonable juror could conclude that the defendant's failure to tell the victim that he intended to have sex with her and his kiss on her cheek were each intended to conceal from her his true intentions and that she would not have gone with him had he been honest with her. The court rejected the defendant’s argument that there is no evidence of fraud because his promise to help the victim escape from her brother was not false, reasoning that fraud may be based upon an omission.