An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitte d in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-516
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 2 December 2014


STATE OF NORTH CAROLINA

      v.                                         Randolph County
                                                 No. 11 CRS 50969
REYNA PATRICIA VALENCIA



      Appeal by defendant from judgment entered 16 September 2013

by Judge Richard W. Stone in Randolph County Superior Court.

Heard in the Court of Appeals 7 October 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Christopher W. Brooks, for the State.

      Cooley Law       Office,    by     Craig    M.    Cooley,   for   defendant-
      appellant.


      HUNTER, Robert C., Judge.


      Reyna Valencia (“defendant”) appeals from judgment entered

after a jury convicted her of felony death by motor vehicle,

reckless     driving,     and     two    counts        of   felonious   restraint.

Defendant’s sole argument on appeal is that the trial court

erred   by   denying     her    motion    to     dismiss    the   two   charges   of

felonious restraint where the evidence showed that the minor
                                             -2-
victims      willingly      entered        defendant’s          vehicle        and     were    not

induced to do so by fraud.

       After careful review, we find no error.

                                      Background

       On Saturday, 19 February 2011, brothers J.S. and R.S.1 were

playing      soccer    at   their         home    and     noticed         defendant,         their

uncle’s      girlfriend,       drinking          beer     and       socializing         in    the

backyard.       The boys were 14 and 12 years old, respectively.

After playing soccer for thirty to forty five minutes, J.S. and

R.S. went to the front cul-de-sac to play basketball.                                  Defendant

left the backyard and got into her car to run errands.                                        She

approached the boys in her vehicle and asked them through the

driver’s     side     window    if    they       wanted        to   go    with    her    to    run

errands for the evening’s party.                    The boys declined defendant’s

offer twice.        Defendant told them that she hated being alone and

that   the    boys’    mother       had    given        them    permission        to    go    with

defendant.      It is undisputed that the boys’ mother did not give

defendant     permission       to    take        them    with       her   to     run    errands.

However, believing that their mother had given them permission,

J.S. and R.S. got into defendant’s car, and the three drove away




1
  Pseudonyms will be used to protect the identity and privacy of
the minor victims in this case.
                                       -3-
from the house.        Inside the vehicle, J.S. noticed a bottle of

Bud Light beer in the driver’s side cup holder.

       Defendant first stopped at her cousin’s house to invite her

relatives to the party.            Defendant invited the boys into the

house, but they decided to stay in the car.                 After ten minutes,

they walked to a nearby park.               They walked back to the house

after about thirty minutes and found defendant “drinking beer

and having a good time.”           When defendant was finished, she drove

the boys to another apartment where she stopped for five to ten

minutes.      J.S. and R.S. waited in the car during the second

stop.

       After running the first two errands, defendant drove onto

Highway 220.         Soon thereafter, defendant lost control of the

vehicle.       An    eyewitness     testified      that   defendant    had   been

“swerving all over the road” and “wasn’t competent of driving.”

Defendant caused the vehicle to swerve off the right embankment,

fly up into the air, and land on its roof against a street sign.

J.S.    was   able    to   crawl    away    from   the    accident    relatively

unharmed, but R.S. was declared deceased by paramedics shortly

after they arrived at the scene.                 Defendant was airlifted to

Wake Forest Baptist Hospital in Winston-Salem, North Carolina.

Nurses   collected     three   vials       of   blood,    which   revealed   that
                                         -4-
defendant’s       blood     alcohol     concentration      (“BAC”)      was     .18.

Officers of the Asheboro Police Department obtained a search

warrant to seize the vials.            Subsequent chemical analysis by the

State Bureau of Investigation also showed a BAC of .18.

    Defendant was arrested and charged with felony death by

vehicle,     driving       while     impaired,    reckless    driving,        felony

restraint, and involuntary manslaughter.                 At the close of all

evidence    at    trial,    defendant    moved    to    dismiss   the   felonious

restraint     charges.         She    argued     that   the   State     presented

insufficient evidence of one element of the charge – an unlawful

restraint.       The State claimed that by tricking the boys into

getting into her vehicle, defendant unlawfully restrained them

through fraud.       The trial court denied defendant’s motion.                  The

jury found defendant guilty of felony death by motor vehicle,

reckless driving, and two counts of felonious restraint.

                                     Discussion

    Defendant’s sole argument on appeal is that the trial court

erred by denying her motion to dismiss the charges of felonious

restraint.       We disagree.

    “This Court reviews the trial court’s denial of a motion to

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).          To defeat a motion to dismiss, the State
                                     -5-
must present “substantial evidence (1) of each essential element

of the offense charged, or of a lesser offense included therein,

and (2) of defendant’s being the perpetrator of such offense.”

State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000)

(quotation    omitted).      “Substantial     evidence       is    such   relevant

evidence     as   a   reasonable   mind    might    accept    as    adequate      to

support a conclusion.”        State v. Denny, 361 N.C. 662, 664-665,

652 S.E.2d 212, 213 (2007) (quotation marks omitted).                        “When

reviewing a defendant’s motion to dismiss for insufficiency of

the evidence, the evidence must be considered in a light most

favorable to the State and the State must be given the benefit

of   every   reasonable    inference      arising   therefrom.”           State   v.

Sakobie, 157 N.C. App. 275, 281, 579 S.E.2d 125, 129 (2003)

(internal quotation marks omitted).

      Pursuant to N.C. Gen. Stat. § 14-43.3 (2013):

             A person commits the offense of felonious
             restraint if he unlawfully restrains another
             person without that person’s consent, or the
             consent of the person’s 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.

      Defendant only challenges the sufficiency of the evidence

proving that R.S. and J.S. were “unlawfully restrained.”                      This
                                              -6-
Court    has     held    that      “the    requirement        for     ‘restraint’      for    a

charge     of     kidnapping        is     the      same    as    the     requirement        of

‘restraint’       for a charge of felonious restraint.”                              State v.

Lalinde, __ N.C. App. __, __, 750 S.E.2d 868, 873 (2013), review

allowed,    __       N.C.    __,   758     S.E.2d     878    (2014).         Thus,    caselaw

defining        “restraint”        in     the    context         of   a    kidnapping        is

applicable       to    the    issue      of   what    constitutes         “restraint”       for

these purposes.

    Our Supreme Court has held that “[t]he term ‘restraint,’

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.”           State    v.

Fulcher,       294    N.C.     503,       523,   243       S.E.2d     338,    351     (1978).

Furthermore, “restraint can also occur when one person’s freedom

of movement is restricted due to another’s fraud or trickery.”

Lalinde, __ N.C. App. at __, 750 S.E.2d at 873 (quotation marks

omitted).       To establish the element of “restraint” by fraud, the

burden is on the State to show that the defendant’s “fraud or

trickery directly induced the victim to be removed to a place

other than where the victim intended to be.”                              State v. Davis,

158 N.C. App. 1, 13, 582 S.E.2d 289, 297 (2003).                              Furthermore,

“felonious restraint . . . does not require the State to prove
                                  -7-
defendant’s purpose for the restraint.”        State v. Stinson, 127

N.C. App. 252, 258, 489 S.E.2d 182, 186 (1997).

       Here, it is undisputed that defendant tricked R.S. and J.S.

into going with her to run errands by falsely stating that their

mother had given them permission.       Defendant concedes that she

used “fraud” and a “fib” in convincing the boys to go with her.

However, she contends that she did not unlawfully restrain them

in the vehicle for two reasons: (1) the boys actually wanted to

run errands with her; and (2) she did not have an “evil intent”

behind    the   misrepresentation.      We    find   these    arguments

unpersuasive.

       First,   contrary   to   defendant’s   argument,      the   State

presented substantial evidence that neither R.S. nor J.S. wanted

to get into the vehicle.        This Court has held that fraud can

amount to an “unlawful restraint” where it causes the victim to

be in “a place or places other than where [the victim] wanted to

be.”     State v. Sturdivant, 304 N.C. 293, 306, 283 S.E.2d 719,

729 (1981).     Defendant contends that because the boys entered

her vehicle when they found out they had permission from their

mother, the only thing stopping them from doing so initially was

a lack of permission, not a desire to stay.            However, J.S.

testified that the boys did not decline the offer twice because
                               -8-
they did not have permission, but because they did not want to

go with defendant to run errands. Specifically, he testified

that he told defendant, “No, we don’t want to go. We just want

to stay here and play.”    J.S.’s testimony shows that the boys

wanted to continue playing basketball in their driveway before

they were induced by defendant’s fraud to get into her vehicle.

Taking this evidence in the light most favorable to the State,

this evidence was sufficient to allow a reasonable jury to find

an “unlawful restraint.”   See Sturdivant, 304 N.C. at 306, 283

S.E.2d at 728; Lalinde, __ N.C. App. at __, 750 S.E.2d at 873-

74.

      Furthermore, it is irrelevant that defendant did not have

an “evil intent” behind the misrepresentation.   “The distinction

between felonious restraint and [kidnapping] is that the former

does not require the state to prove defendant’s purpose for the

restraint.”   Stinson, 127 N.C. App. at 258, 489 S.E.2d at 186.

Because the intent underlying defendant’s fraudulent inducement

is not an element of the crimes charged, defendant’s benign

motives in tricking the boys does not render the trial court’s

denial of defendant’s motion to dismiss erroneous.

                           Conclusion
                                  -9-
    Because     the   State   presented   substantial   evidence   that

defendant unlawfully restrained R.S. and J.S. by fraudulently

inducing them to stop playing basketball and run errands with

her, we find no error in the trial court’s denial of her motion

to dismiss the charges of felonious restraint.



    NO ERROR.

    Judges DILLON and DAVIS concur.

    Report per Rule 30(e).
