[DV_listserv] Kidnapping Case Law

[Domestic Violence issues]

Prosecutors and Law Enforcement Officers: For several years, we've been receiving some difficult rulings from the Court of Appeals and Supreme Court on Kidnapping charges. The case (Lunetta) below is another one. The issue in Lunetta is whether the defendant moved the victim to a "qualitatively different location."  Here, the COA found insufficient evidence that happened (although the trial court found otherwise). The only description of the facts surrounding the defendant moving the victim is this sentence:

"The armed man said that he was robbing the house and ordered the residents to lie on the ground, which they did. Shortly thereafter, the man with the gun ordered a resident to go with him to one of the bedrooms, where another resident was sleeping."

(This case summary is from DOJ's Appellate Division Legal Update)
KIDNAPPING: In prosecution for armed, home-invasion robbery, the trial court should
have acquitted defendant on the kidnapping charges, because the evidence was legally
insufficient to show that he had moved the victims to a qualitatively different location.
State v. Lunetta, 269 Or App 512, __ P3d __ (2015) (Multnomah) (AAG Becca Auten).
Defendant and three accomplices broke in to the victims' home and robbed them at gunpoint,
taking a gun safe, among other property. Within hours of the robbery, the girlfriend of one of the
men saw them arrive at her residence with the gun safe and stolen property, which they then
divided up. Defendant stayed at that residence occasionally. Months later, the police searched
the residence and found the gun safe. Two of the accomplices cooperated with police, and
defendant was charged with five counts of first-degree robbery and four counts of first-degree
kidnapping. At trial, one of the accomplices testified that defendant participated in the robbery.
In addition, the state offered letters that defendant had written from jail encouraging witnesses to
lie in court. The state also offered the testimony of the girlfriend. One of the victims also
testified that defendant's build was consistent with the build of one of the robbers. Defendant
moved for a judgment of acquittal, arguing that the state had failed to corroborate the testimony
of the accomplice that he had participated in the robbery. He also argued that the state failed to
prove that he had moved the victims from "one place to another," as is required by ORS 163.235.
The trial court (Judge John A. Wittmayer) denied the motion, and a jury found defendant guilty
on all charges.

Held: Kidnapping convictions reversed; remanded for resentencing. (Egan, J.).
[1] Evidence that corroborates accomplice testimony, for purposes of ORS 136.440(1), "must
fairly and legitimately tend to connect the defendant with the crime, so that it can in truth be said
that his conviction is not based entirely upon evidence of the accomplices." Here, "the totality of
the evidence readily corroborates the accomplice testimony." [2] The trial court should have
acquitted defendant on the kidnapping charges, "because the evidence was legally insufficient to
show that he had moved the victims to a qualitatively different location."
http://www.publications.ojd.state.or.us/docs/A155286.pdf

Other Kidnapping cases to remember:


KIDNAPPING

> State v. Kinslow, 257 Or App 295, __ P3d __ (2013). The victim was at defendant's house using methamphetamine with her when she called Warren to come over and assault the victim. When Warren arrived and directed him to empty his pockets, the victim placed his cell phone and some cash on the bed. Warren then assaulted the victim over the course of a day and a half, refusing to let him leave. During the assault, Warren moved the victim from room to room, including from the living room into the bathroom. Eventually, the victim awoke to find Warren gone and defendant asleep, and so he finally escaped. The following week, the police executed a search warrant at defendant's home and found drugs, packaging materials, drug paraphernalia, and drug records; they also found the victim's cell phone in her car. She was charged with numerous offenses, including first-degree kidnapping (as an accomplice) under ORS 163.225(1)(a) ("one place to another"). Defendant moved for judgment of acquittal on the kidnapping charge, arguing that the evidence was insufficient to show that Warren moved the victim from "one place to another," but the trial court denied the motion. The jury found defendant guilty. HELD: Conviction for first-degree kidnapping reversed. In light of State v. Sierra, 349 Or 506 (2010), and State v. Opitz , 256 Or App 521 (2013), the evidence "failed to prove that the victim was taken 'from one place another' for purposes of" ORS 137.225(1)(a). The question is "whether, viewing the evidence in the light most favorable to the state, as a matter of situation and context, the victim's ending place [was] qualitatively different from the victim's starting place. ... Given the situation and context-that is, a day-and-a-half-long assault in defendant's home-there were no qualitative differences between the various rooms of the small house. Whatever functional differences between the living room, kitchen, and bathroom, there was nothing about any one of those rooms that, on these particular facts, increased Warren's or defendant's control over the victim or further isolated the victim."

Note: Defendant was not charged with kidnapping under the "secretly confines" alternative in ORS 163.225(1)(b).

> State v. Opitz, 256 Or App 521, 301 P3d 946 (2013). 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 denied the motion, and found defendant guilty. HELD: Conviction for first-degree kidnapping reversed, otherwise affirmed; remanded for resentencing. 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.

> State v. Gerlach, 255 Or App 614, 300 P3d 193, rev den, 353 Or 787 (2013). Defendant drove into and knocked a 10-year-old girl off her bicycle, he then forced her into his car, drove her to a remote area, parked, and sexually assaulted her. He then got back into the driver's seat and drove off, with the victim still in the car, heading toward a forested, mountainous area, possibly with an intent to murder her and dump her body. Fortunately, the police caught up with him and forced his car off the road, and the victim was rescued. Defendant was charged with two counts of first-degree kidnapping, among other crimes. The state's theory was that his act of forcing the victim into his car and driving to the location of the sexual assault constituted one kidnapping, and his act of driving the victim from that location toward the mountainous area constituted the second kidnapping. Defendant stipulated that he committed all of the acts alleged in the indictment. At sentencing, he argued that the two kidnapping counts should merge. The sentencing court rejected that argument holding that, under ORS 161.067(3), the two counts did not merge because they constituted "repeated violations" of the kidnapping statute and were separated by a "sufficient pause in the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent." HELD: Reversed and remanded. [1] Defendant's stipulation to the facts alleged in the indictment does not preclude review of his claim: "the scope and application of ORS 161.067 is a question of law that we review for errors of law." [2] "Because kidnapping is the seizure of a person for the purpose of substantially interfering with the person's liberty, it is a continuing crime. It continues for as long as the seizure continues. Therefore, if defendant commits the crime of kidnapping by taking a person from one place to a second place, the defendant does not commit an additional kidnapping by moving the person from a second place to a third place." [3] Because a single deprivation of the victim's personal liberty is a single violation of ORS 163.225, and, consequently, a single violation of ORS 163.235, merger of defendant's kidnapping counts is not prevented by ORS 161.067(3)."


*****CONFIDENTIALITY  NOTICE*****

This e-mail may contain information that is privileged, confidential, or otherwise exempt from disclosure under applicable law. If you are not the addressee or it appears from the context or otherwise that you have received this e-mail in error, please advise me immediately by reply e-mail, keep the contents confidential, and immediately delete the message and any attachments from your system. 

************************************
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://omls.oregon.gov/pipermail/dv_listserv/attachments/20150316/2d5f3676/attachment.html>