[DV_listserv] Legal Update--Kidnapping

[Domestic Violence issues]

KIDNAPPING: EVIDENCE FAILED TO PROVE THAT DEFENDANT'S EXTENDED ASSAULT OF
VICTIMWITHIN HER APARTMENT INVOLVED ASPORTATION FROM ONE PLACE TO ANOTHER
State v. Opitz, 256 Or App __, __ P3d __ (May 15, 2013) (Marion) (AAG Jeremy Rice).

Defendant assaulted his girlfriend repeatedly over several hours inside her one-bedroom
apartment, leaving her seriously injured. During the course of the extended assault, he moved
her around between different rooms. For example, after beating the victim in the living room, he
"pulled her by her hair into the bathroom and threw her headfirst into the shower." There, the
victim's "face smashed into a metal bar in the shower, fracturing the orbital bone around her left
eye." He then "turned cold water onto the victim to rinse off the blood." Even though she
wanted to obtain medical treatment for her "substantial injuries," he forced her to remain in the
apartment with him for the next three days. Eventually, her daughter called the police for a
"welfare check," and the victim was rescued. Defendant was charged with numerous offenses,
including a count of first-degree kidnapping based on an allegation that he took the victim "from
one place to another." ORS 163.225(1)(a). The case was tried to the court, and defendant
moved for a judgment of acquittal on that kidnapping charge, arguing that the evidence was
insufficient to establish that he moved the victim "from one place to another." The trial court
(Judge John B. Wilson) denied the motion, and found defendant guilty.

Held: Conviction for first-degree kidnapping reversed, otherwise affirmed; remanded for
resentencing (Haselton, C.J.). The trial court should have granted defendant's motion for
judgment of acquittal. [1] Defendant sufficiently preserved his argument concerning the
asportation element of the kidnapping charge. Although his argument before the trial court
"pertained primarily to the intent element of kidnapping," the state's response and the trial
court's reasoning rejecting his argument "demonstrate that the parties and the court both
understood that defendant's motion challenged the sufficiency of the evidence as to both the act
and intent elements." [2] With respect to different room in the same residence, "generic
functional distinctions do not establish the requisite 'qualitative difference' vis-à-vis the
commission of the crime of kidnapping. The hallmark of 'qualitative difference' is whether the
difference between the starting and ending places promotes or effectuates a substantial
interference 'with another's personal liberty.' ORS 163.225(1). In the situation and context of
this case, the functional differences among the rooms in the victim's apartment had no effect on
the extent to which defendant interfered with the victim's personal liberty. In that respect, we
also note that the state adduced no evidence that, in moving the victim between rooms of her
apartment, defendant intended or accomplished transporting the victim to a place where he could
exert greater control over the victim or increase her isolation." [3] The evidence was insufficient
to prove asportation. To establish that element of a kidnapping offense, the state must prove that
defendant "qualitatively changed the victim's location," and that any movement was not
"incidental to the assaults." Under State v. Sierra, 349 Or 506, 518 n 9 (2010), defendant's
movement of the victim from room to room around her apartment was incidental to the assault
and no individual movement-including the movement from the living room to the bathroom
where he cleaned her blood-constituted a "qualitative" change in her location.
http://www.publications.ojd.state.or.us/docs/A146084.pdf

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