Commonwealth v. Rivera, 460 Mass. 139

2009 trial for attempted kidnapping of an 11-year-old; defendant moved for a required finding of not guilty, which was denied; he was convicted and sentenced; appeal argued insufficiency of evidence and improper admission of police statement; court reverses and renders for the defendant.
Facts: in 2008, boy encountered defendant who drove a car and told him to get into the car; boy refused and walked toward a pharmacy; no weapon or physical restraint used; eyewitness observed vehicle and noted plate; police later arrested defendant; defendant admitted wanting to take the boy home to listen to music; no witnesses for the defense.
Court assesses evidence to determine if the Commonwealth proved essential element of intent to forcibly or secretly confine the victim and an overt act toward kidnapping.
Court notes the statute requires intent to confine or imprison against the will and an overt act; confinement may be by restraint of movement and may be secret if unlikely to be discovered within a reasonable time.
Court concludes there is insufficient evidence of the defendant’s intent to secretly confine the boy, and thus reverses the conviction; judgment for the defendant is entered.
The dissent argues the conviction should be affirmed, contending the order to get into the car and the surrounding circumstances could indicate intent to abduct and confine secretly.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there sufficient evidence of intent to forcibly or secretly confine the boy?	Commonwealth argues defendant intended to secretly confine.	Banfill-style facts show insufficient intent to confine.	Insufficient evidence of intent; judgment reversed.
Were defendant's statements to police admissible and did they affect sufficiency?	Statements supported inferred intent to confine.	Statements were not essential to sufficiency; admissibility not dispositive.	Not necessary to reach admissibility; insufficiency still governs.

Commonwealth v. Banfill, 413 Mass. 1002 (Mass. 1992) (reversed conviction for lack of evidence of intent to kidnap)
Commonwealth v. Perry, 432 Mass. 214 (Mass. 2000) (confined or secret confinement; proof of intent to confine with some secrecy)
Commonwealth v. Kelley, 370 Mass. 147 (Mass. 1976) (sufficiency of evidence; no conjecture or guesswork on essential elements)
Commonwealth v. Latimore, 378 Mass. 671 (Mass. 1979) (standard for reviewing denial of required finding of not guilty)
Commonwealth v. Colon, 431 Mass. 188 (Mass. 2000) (tender years child per se against will)
Commonwealth v. Brown, 66 Mass. App. Ct. 237 (Mass. App. Ct. 2006) (definition of confinement as restraint of movement)
Commonwealth v. Mandile, 403 Mass. 93 (Mass. 1988) (evidence insufficient if based on conjecture)