She was returned to Berkeley County and dropped off outside a manufacturing plant on the morning of May 6.
A passing motorist called police. Berkeley County deputies woke her sleeping family who had not realized she had been snatched in the middle of the night.
The kidnapping charge is incidental to the alleged sexual assault that occurred, according to the defense motion.
The sexual assault case has not yet gone to the grand jury, but it may be presented in January, officials said.
"The general rule is that a kidnapping has not occurred when it is incidental to another crime," according to the defense motion.
"In deciding whether the acts that technically constitute kidnapping were incidental to another crime, courts examine the length of the time the victim was held or moved, the distance the victim was forced to move, the location and environment of the place where the victim was detained and the exposure of the victim to an increased risk of harm."
The defense argued in the motion that the facts of the case do not support a kidnapping charge because:
- The victim was not awake when taken from the home.
- No weapon was used in taking her from the home.
- The alleged sexual assault occurred in Jefferson County.
- The person who allegedly sexually assaulted the victim "fell asleep after doing so and upon awakening, returned the child to Berkeley County."
- The child was not taken a great distance away and probably was not gone more than two to four hours.
Investigators said at a preliminary hearing in May they were impressed by the young girl's eye for details of the man's tattoos, scars and the car's interior. A tip led to his arrest on May 7 at Dalb Inc., in Bardane, W.Va.
Berkeley County Circuit Judge Thomas Steptoe ordered the motion to be heard in court soon.
Ellinger's trial in Berkeley County is scheduled to begin Feb. 24.