DocketNumber: 120934143; A155420
Citation Numbers: 270 Or. App. 508, 348 P.3d 336
Judges: Duncan, Lagesen, Wollheim
Filed Date: 4/22/2015
Status: Precedential
Modified Date: 9/9/2022
In this criminal case, defendant appeals the trial court’s judgment, which convicted him of, among other crimes, four counts of kidnapping in the first degree (Counts 13-16).
ORS 163.225 provides that “[a] person commits the crime of kidnapping in the second degree if, with intent to interfere substantially with another’s personal liberty, and without consent or legal authority, the person” either “Makes the person from one place to another” or “[s]ecretly confines the person in a place where the person is not likely to be found.” ORS 163.235 provides that “[a] person commits the crime of kidnapping in the first degree if the person violates ORS 163.225 [which defines kidnapping in the second degree]” with any of five listed purposes, including “ [t] o terrorize the victim or another person!.]” In this case, each of the four kidnapping counts alleged that defendant “did unlawfully and knowingly, without consent or legal authority, take [the victim] from one place to another, with intent to interfere substantially with the personal liberty of [the victim], and with the purpose of terrorizing [the victim].”
To prove the asportation element of kidnapping— that is, to prove that a defendant took a victim “from one place to another”—the state must prove that the defendant “‘change [d] the position of the victim such that, as a matter of situation and context, the victim’s ending place [was]
Here, defendant argues, and the state concedes, that the record is insufficient to establish the asportation element of kidnapping. Viewed in the light most favorable to the state, the relevant evidence is that defendant and three companions committed a home-invasion robbery involving five victims. They broke into the home through an attached garage, which had been modified for use as a recreation and sleeping room. In the garage, they encountered three of the victims and forced them at gunpoint into a bedroom in the house, where the fourth victim was sleeping. Later, they found the fifth victim in another bedroom and forced him at gunpoint into the bedroom where the others were. Under Opitz and Kinslow, moving the victims between the rooms does not constitute asportation, both because the victims’ starting and ending places were not qualitatively different and because the movements were incidental to the robbery.
In addition to the four counts of first-degree kidnapping (Counts 13-16), ORS 163.235(l)(d), defendant was charged with, and found guilty of, five counts of robbery in the first degree (Counts 1-5), ORS 164.415; five counts of robbery in the second degree (Counts 6-10), ORS 164.405, which merged with the first-degree robbery counts; and two counts of burglary in the first degree (Counts 11 and 12), ORS 164.225, which merged with each other.