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<p class="MsoNormal"><o:p> </o:p></p>
<p class="MsoNormal"><b><u>Prosecutors and Law Enforcement Officers</u></b>: For several years, we’ve been receiving some difficult rulings from the Court of Appeals and Supreme Court on Kidnapping charges. The case (<i>Lunetta</i>) 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:<o:p></o:p></p>
<p class="MsoNormal"><o:p> </o:p></p>
<p class="MsoNormal"><i>“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.”<o:p></o:p></i></p>
<p class="MsoNormal"><i><o:p> </o:p></i></p>
<p class="MsoNormal"><b>(This case summary is from DOJ’s Appellate Division Legal Update)<o:p></o:p></b></p>
<p class="MsoNormal"><b>KIDNAPPING: In prosecution for armed, home-invasion robbery, the trial court should<o:p></o:p></b></p>
<p class="MsoNormal"><b>have acquitted defendant on the kidnapping charges, because the evidence was legally<o:p></o:p></b></p>
<p class="MsoNormal"><b>insufficient to show that he had moved the victims to a qualitatively different location.<o:p></o:p></b></p>
<p class="MsoNormal"><b><i>State v. Lunetta, </i></b>269 Or App 512, __ P3d __ (2015) (Multnomah) (AAG Becca Auten).<o:p></o:p></p>
<p class="MsoNormal">Defendant and three accomplices broke in to the victims’ home and robbed them at gunpoint,<o:p></o:p></p>
<p class="MsoNormal">taking a gun safe, among other property. Within hours of the robbery, the girlfriend of one of the<o:p></o:p></p>
<p class="MsoNormal">men saw them arrive at her residence with the gun safe and stolen property, which they then<o:p></o:p></p>
<p class="MsoNormal">divided up. Defendant stayed at that residence occasionally. Months later, the police searched<o:p></o:p></p>
<p class="MsoNormal">the residence and found the gun safe. Two of the accomplices cooperated with police, and<o:p></o:p></p>
<p class="MsoNormal">defendant was charged with five counts of first-degree robbery and four counts of first-degree<o:p></o:p></p>
<p class="MsoNormal">kidnapping. At trial, one of the accomplices testified that defendant participated in the robbery.<o:p></o:p></p>
<p class="MsoNormal">In addition, the state offered letters that defendant had written from jail encouraging witnesses to<o:p></o:p></p>
<p class="MsoNormal">lie in court. The state also offered the testimony of the girlfriend. One of the victims also<o:p></o:p></p>
<p class="MsoNormal">testified that defendant’s build was consistent with the build of one of the robbers. Defendant<o:p></o:p></p>
<p class="MsoNormal">moved for a judgment of acquittal, arguing that the state had failed to corroborate the testimony<o:p></o:p></p>
<p class="MsoNormal">of the accomplice that he had participated in the robbery. He also argued that the state failed to<o:p></o:p></p>
<p class="MsoNormal">prove that he had moved the victims from “one place to another,” as is required by ORS 163.235.<o:p></o:p></p>
<p class="MsoNormal">The trial court (Judge John A. Wittmayer) denied the motion, and a jury found defendant guilty<o:p></o:p></p>
<p class="MsoNormal">on all charges.<o:p></o:p></p>
<p class="MsoNormal"><o:p> </o:p></p>
<p class="MsoNormal"><i>Held</i>: Kidnapping convictions reversed; remanded for resentencing. (Egan, J.).<o:p></o:p></p>
<p class="MsoNormal">[1] Evidence that corroborates accomplice testimony, for purposes of ORS 136.440(1), “must<o:p></o:p></p>
<p class="MsoNormal">fairly and legitimately tend to connect the defendant with the crime, so that it can in truth be said<o:p></o:p></p>
<p class="MsoNormal">that his conviction is not based entirely upon evidence of the accomplices.” Here, “the totality of<o:p></o:p></p>
<p class="MsoNormal">the evidence readily corroborates the accomplice testimony.” [2] The trial court should have<o:p></o:p></p>
<p class="MsoNormal">acquitted defendant on the kidnapping charges, “because the evidence was legally insufficient to<o:p></o:p></p>
<p class="MsoNormal">show that he had moved the victims to a qualitatively different location.”<o:p></o:p></p>
<p class="MsoNormal"><a href="http://www.publications.ojd.state.or.us/docs/A155286.pdf">http://www.publications.ojd.state.or.us/docs/A155286.pdf</a><o:p></o:p></p>
<p class="MsoNormal"><o:p> </o:p></p>
<p class="MsoNormal"><b><u>Other Kidnapping cases to remember:<o:p></o:p></u></b></p>
<p class="MsoNormal"><o:p> </o:p></p>
<p class="Default"><b><span style="font-size:14.0pt">KIDNAPPING </span></b><span style="font-size:14.0pt"><o:p></o:p></span></p>
<p class="Default"><span style="font-size:11.5pt;font-family:Wingdings">Ø </span>
<b><i><span style="font-size:11.5pt">State v. Kinslow, </span></i></b><span style="font-size:11.5pt">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.
<b><i>HELD:</i></b><i> </i>Conviction for first-degree kidnapping reversed. In light of
<i>State v. Sierra</i>, </span><span style="font-size:11.5pt;color:windowtext">349 Or 506 (2010), and
<i>State v. Opitz </i>, 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).
<b>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.</b> … 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.”</span><span style="font-size:11.5pt"><o:p></o:p></span></p>
<p class="Default"><i><span style="font-size:11.5pt;color:windowtext">Note</span></i><span style="font-size:11.5pt;color:windowtext">: Defendant was not charged with kidnapping under the “secretly confines” alternative in ORS 163.225(1)(b).
<o:p></o:p></span></p>
<p class="Default"><span style="font-size:11.5pt;font-family:Wingdings;color:windowtext">Ø
</span><b><i><span style="font-size:11.5pt;color:windowtext">State v. Opitz</span></i></b><span style="font-size:11.5pt;color:windowtext">, 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.
<b><i>HELD</i>:</b> 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. <b>
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.’</b> 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
<i>State v. Sierra</i>, 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. <o:p></o:p></span></p>
<p class="Default"><span style="font-size:11.5pt;font-family:Wingdings;color:windowtext">Ø
</span><b><i><span style="font-size:11.5pt;color:windowtext">State v. Gerlach</span></i></b><span style="font-size:11.5pt;color:windowtext">, 255 Or App 614, 300 P3d 193,
<i>rev den</i>, 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.” <b><i>HELD</i>:</b> 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] <b>“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.”</b> [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).”
<o:p></o:p></span></p>
<p class="MsoNormal"><o:p> </o:p></p>
<p class="MsoNormal"><o:p> </o:p></p>
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