Defendant appeals, challenging, inter alia, his conviction for first-degree kidnapping, ORS 163.235, assigning error to the trial court’s denial of his motion for judgment of acquittal (MJOA) and entry of conviction on that charge.
In reviewing the denial of an MJOA, we view the facts in the light most favorable to the state to determine whether a rational trier of fact could find each element of the charged offense beyond a reasonable doubt. State v. Cervantes,
Stated consistently with that standard, the facts material to the kidnapping charge are as follows. Defendant and the victim met in early 2008, and, in the spring of 2008, they became romantically involved. Shortly thereafter, defendant moved into the victim’s one-bedroom apartment in Woodburn, where he intermittently resided until the summer of 2009. That apartment consisted of a living room, a combined kitchen and dining area, one bathroom, and a hallway leading to a bedroom.
In October 2008, before the events leading to this case, defendant was convicted of fourth-degree assault constituting domestic violence for his conduct related to the victim. In the summer of2009, defendant spent three months in jail. During that period, the victim obtained a restraining order against him. In early September 2009, shortly after defendant was released, he and the victim resumed their relationship, and the victim
Shortly after defendant arrived, and as defendant and the victim were in the living room, defendant “worked himself up” about the fact that he had spent time in jail, for which he blamed the victim. Defendant’s agitation escalated, and he began slapping and punching the victim as she lay on the couch. He then threw her onto the floor, dragged her to the kitchen by her arm, and threw her against a wall and a bookshelf while “bitching about [the victim] putting him in jail.” At that point, the victim was bleeding. Defendant pulled her by her hair into the bathroom and threw her headfirst into the shower; consequently, the victim’s face smashed into a metal bar in the shower, fracturing the orbital bone around her left eye. Defendant turned cold water onto the victim to rinse off the blood.
Defendant then took the victim to the living room, where she lay on the floor. At that point, defendant had obtained a syringe. Defendant placed his knee on the victim’s chest and began stabbing her in the arm, neck, and face with the syringe while telling her that he was injecting her with air and that “[t]he air will kill you, you’ll be dead in a few minutes.” Defendant then moved the victim to the bedroom, threw her onto the bed, would not let her get up, and continued hitting her until both defendant and the victim eventually fell asleep on the bed at approximately 3:00 a.m. on September 11.
During the night of September 10 to 11, the victim told defendant that she needed medical attention because she felt that “something [was] wrong because there [was] squishy stuff going on in [her] stomach.” She asked defendant to leave her apartment and told him that, if he would leave, she would not tell anyone that he had injured her. However, for the next two days, defendant refused to leave the apartment; he would not allow the victim to get close to the door or windows or leave to seek medical attention for her injuries. The victim did not attempt to escape because she was so badly injured that she did not believe that she could physically outrun or outmaneuver defendant and she was afraid that, if she tried to escape, defendant would “hurt [her] some more.”
At some point after the assault, defendant instructed the victim to write a note to her adult daughter, falsely stating that she had gone to the coast with defendant and his son.
On the third day, September 12, the victim’s daughter found the note. Suspicious that something was wrong, the daughter requested that the police perform a welfare check. When the police arrived at the victim’s apartment, defendant had fled after telling the victim that he would kill her if she answered the door or went outside before her wounds had healed. The police took the victim to the hospital, where she received medical treatment for her substantial injuries.
Defendant was subsequently apprehended and charged with attempted murder, ORS 163.115; ORS 161.405 (Count 1); first-degree kidnapping, ORS 163.235 (Count 2); second-degree assault constituting domestic violence, ORS 163.175 (Count 3); first-degree burglary, ORS 164.225 (Count 4); and fourth-degree assault constituting domestic violence, ORS 163.160 (Count 5). As pertinent to our consideration of the first-degree kidnapping charge, the state alleged in the amended indictment that “defendant, on or about September 10, 2009, in Marion County, Oregon, did unlawfully and knowingly, without consent or legal authority, take [the victim]
Defendant waived jury trial, and the case was tried to the court. After the close of the state’s evidence, defendant made an MJOA on, inter alia, the first-degree kidnapping charge. Defendant argued:
“I think there are perhaps two different analyses that can be made as to that. As it relates to the events on the night of September 10th, early morning hours of September 11th, and testimony that he moved her from one room to another room, we would simply submit to the court that the facts testified to do not rise to a level where the court could find that he intended to substantially interfere with her personal liberty.”
Defendant also argued that the victim’s testimony that defendant had prevented her from approaching the door or windows in her apartment related only to events that had occurred after the assault and that “in order for it to be kidnapping in the first degree, the interference with personal liberty had to be for the purpose of causing physical injury to [the victim],” and, because there was no evidence that defendant intended to further physically harm the victim, the evidence that he intended to keep the victim away from the door and windows was not sufficient to satisfy the intent requirement for first-degree kidnapping.
The state responded:
“[Defendant draggled] her * * * to the bathroom, but also to the kitchen and then to the bedroom. * * * [S]he was dragged by her hair on all those occasions, against her will.
“Now, whether it’s a substantial distance is not important. ***
“Here, the fact that the defendant is taking her into the bathroom against her will — he not only takes her in there because he needs to clean the blood up so he won’t get caught. He throws her down into the tub, causing more injury. He then drags her out to the living room, drags her to the kitchen, continues to assault her then. So he’s assaulted her in the bathroom by dragging her, assaulting her back out in the living room with needles, and continued punching and kicking all over her body. And then it’s not done, [he dragged] her by the hair to the bedroom. So the asportation element is clear. He is substantially interfering with her personal liberty.”
The state additionally argued that defendant’s movement of the victim was “not incidental to the assault.” The state explicitly disclaimed any reliance on confinement as an alternative means of proving the act element. See ORS 163.225(1)(b) (“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 *** [s]ecretly confines the person in a place where the person is not likely to be found.”). Nonetheless, relying on State v. Mejia,
The trial court summarily denied defendant’s MJOA.
During closing arguments, defendant renewed his MJOA, relying on his previous arguments. The state remonstrated:
“He clearly has kidnapped her. He took her from — and I’m asking the court to look at the totality of this. Frankly, I think we could ask for several kidnappings: One from the living room to the bathroom, one from the bathroom back to the living room, into the kitchen, and then one from the living room to the bedroom. And on all occasions, she was injured, physically injured by this defendant. It was not incidental to the assault. He would beat her,take her to another place, beat her, and every single time he dragged her by her hair to get her to that location against her will. Clearly, his purpose in taking her to those locations was to continue the assaultive nature of his conduct.
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“His intent was clear to keep her there and confine her. And I again ask the court to look at the Mejia case, not for the subsection of kidnapping for confinement in a secret place, but to go towards the substantial step or his taking her and substantially interfering with her personal liberty. He wouldn’t let her go for two days. The Mejia case was an hour and a half and they said that was sufficient. Two days is absolutely sufficient. And his intent was to interfere with her liberty. What else is he doing by not letting her walk to the windows, the doors, and get help? He confined her there to protect himself.”
The trial court again denied defendant’s motion, reasoning:
“With regard to the kidnapping, where you have someone dragging somebody by [her] hair around the apartment, throwing [her] head first into the bathtub, *** causing a physical injury like that[,] * * * I think kidnapping has been satisfied.”
On appeal, defendant correctly observes that, because “[t]he state charged defendant with the asportation theory of kidnapping in the first degree, ORS 163.235(l)(c),” the state was required “to establish that [defendant] moved the victim from one place to another with the intent to interfere substantially with her personal liberty and with the purpose of causing her physical injury.” Defendant contends that the state failed to adduce legally sufficient evidence that defendant “qualitatively change [d] the victim’s location,” and, further, the state failed to establish that any movement was not “incidental to the assaults.” According to defendant, it follows that “the evidence was insufficient to establish that defendant took the victim from one place to another.” Defendant further, and alternatively, argues that the state’s evidence was insufficient to prove the requisite culpable mental state — that is, that defendant intended to “interfere substantially with [the victim’s] personal liberty,” ORS 163.225(1)— because the evidence did not establish that defendant “intended to confine the victim for a substantial period of time or intended to move the victim a substantial distance.”
The state first remonstrates that defendant’s argument regarding the asportation element is unpreserved:
“Before the trial court, defendant contended that the evidence was insufficient to show that he intended to interfere with the victim’s personal liberty- — -the ‘mental state’ element of the offense — but he did not dispute that the evidence was sufficient to prove that he moved the victim from place to place — -the ‘act’ element of the offense.”
In any event, the state argues, the evidence at trial was legally sufficient to demonstrate that defendant had moved the victim “from one place to another” because, in the state’s view, each room in the victim’s apartment “was, in context, a ‘qualitatively different’ place.” Specifically, the state contends that
“a rational [trier of fact] could conclude that the bathroom was ‘qualitatively’ different from the kitchen. That is, the bathroom served a specific and additional function in defendant’s overall assault. In addition to being another place to assault the victim, the bathroom also served as a location-distinct from any other room in the residence — where defendant could clean the blood from the victim’s body and clothing. Because the bathroom had a bathtub and shower, and consequently was able to serve a different and additional function than other rooms in the residence, it was ‘qualitatively’ different from other rooms in the residence.”
For the reasons amplified below, we determine that defendant’s challenge to the legal sufficiency of the state’s proof of asportation is preserved. We further conclude, on the merits, that the state failed to adduce sufficient evidence to demonstrate that defendant moved the victim “from one place to another” within the meaning of ORS 163.225. Accordingly, the trial court erred in denying defendant’s MJOA, and we reverse without addressing defendant’s alternative contention
We begin with the threshold issue of preservation. See ORAP 5.45(1) (“No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court.”). We agree with the state that defendant’s argument before the trial court in support of his MJOA pertained primarily to the intent element of kidnapping. See
We proceed to the merits. The Supreme Court most recently articulated what is required to demonstrate the act element of kidnapping by asportation in Sierra,
In Sierra, as pertinent to our analysis here, two victims were patrons at a truck stop restaurant.
On review, the parties’ dispute centered on “the meaning of the act element of kidnapping by asportation.” Sierra,
In Murray, the victim was sitting in the driver’s seat of her car in a grocery store parking lot when the defendant opened the driver’s side door, entered the car, pushed the victim into the passenger seat, and instructed her to get out.
In contrast, Walch “involved nonincidental movement ‘from one place to another.’ ” Sierra,
Against that precedential backdrop, the defendant in Sierra argued that, “as a general rule, movement within a single structure (such as a home, building, or car), including room-to-room movement, will not be movement to a qualitatively different place in terms of interference with a victim’s liberty.”
After observing that “pinpointing the legislature’s intended meaning of the word ‘place’ with precision has proved * * * vexing,” id. at 513, the Supreme Court explained that
“a defendant can be said to have moved the victim from ‘one place’ to ‘another’ only when the defendant changes the position of the victim such that, as a matter of situation and context, the victim’s ending place is qualitatively different from the victim’s starting place.
“Moreover, Murray and Walch identify an additional requirement contained within the act element: the taking must not be ‘only incidental’ to another crime.”
Id. at 513-14 (emphasis added). The court observed that, under that standard, “Murray and Walch are consistent.” Id. at 515.
Before applying that construct to the facts, the court in Sierra sought to
“dispel any misconceptions that may persist as to the meaning [of] the phrase ‘from one place to another’ as it is used in the kidnapping statutes. First, because the wording selected by the legislature requires movement from one place to a second, distinct place, it generally is problematic to suggest or conclude that minimal movement that effectuates little change in the victim’s position — such as, for example, movement requiring one to step to the side, or move from a standing position to a sitting or lying position — is movement ‘from one place to another.’ Second, because the asportation element is defined in terms of relative movement, the degree of force or threat used by a defendant to effectuate the victim’s movement ordinarily is not relevant to a determination whether a victim has been ‘taken from one place to another.’ Third, the degree by which the movement in question increases defendant’s control over the victim, or isolates the victim from the view of others, is relevant to the determination whether a defendant has moved a victim ‘from one place to another’ only to the extent that those considerations tend to demonstrate the qualitative difference between where the victim started (‘from one place’) and where the victim was as a result of the defendant’s conduct (‘another [place]’).See Walch, 346 Or at 482 (When defendant forced victim from a driveway outside her home into a car trunk, existence of car trunk is relevant ‘not because it is a “secret” place * * * but because it was “another” “place” to which defendant took the victim[.]’).6 However, because neither isolation nor control of the victim is required by the wording of ORS 163.225(l)(a), those considerations cannot be substituted for the ultimate inquiry whether the victim was moved from one place to another.
Id. at 516.
Consistently with the foregoing construction, the Supreme Court in Sierra rejected the defendant’s proposition that “movement of a victim within a single structure will never be place-to-place movement.” Id. at 517 (emphasis in original). Instead, the court concluded that, in the particular “situation and context” of Sierra, the facts were insufficient to allow a rational trier of fact to conclude that the defendant moved the two victims “from one place to another.” Id. That was so, the court explained, because “[t]he beginning location (inside a convenience store, near the front door) and the ending location (inside the same room, behind a *** counter near the back of the room) of [the] defendant’s contact with [the victims] are not ‘qualitatively different’ locations.” Id. Accordingly, the court concluded that “the state introduced insufficient evidence to prove the two charges of kidnapping in the second degree.” Id. at 518.
We return to this case. For purposes of our review, the issue reduces to 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.” Id. at 513-14 (internal quotation marks omitted).
Here, the victim’s “starting place” was the living room of her apartment. Defendant moved her from the living room to the kitchen, from the kitchen to the bathroom, back to living room, and ultimately down the hallway to the bedroom. 256 Or App at 524. To be sure, each of those rooms was — as the state emphasizes — functionally distinct, but Sierra, Murray, and Walch instruct us that generic functional distinctions do not establish the requisite “qualitative difference” vis-a-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. Accord State v. Gerlach,
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. See Sierra,
The state posits, nevertheless, that, “[b]ecause the bathroom had a bathtub and shower,
Finally, the evidence here demonstrates that, during the course of the nearly seven-hour assault, defendant moved the victim in the course and in furtherance of the ongoing assault. The movement, thus, was “only incidental” to the assault. The assault ended when defendant and the victim fell asleep in the bedroom. See
For the foregoing reasons, we conclude that the state introduced insufficient evidence for a rational trier of fact to determine that defendant moved the victim “from one place to another.” ORS 163.225. Accordingly, the trial court erred in denying defendant’s MJOA on the kidnapping charge.
Conviction for first-degree kidnapping reversed; remanded for resentencing; otherwise affirmed.
Notes
ORS 163.235 provides, as relevant:
“(1) A person commits the crime of kidnapping in the first degree if the person violates ORS 163.225 with any of the following purposes:
#
“(c) To cause physical injury to the victimf.]”
ORS 163.225 provides, in part:
“(1) 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:
“(a) Takes the person from one place to another; or
“(b) Secretly confines the person in a place where the person is not likely to be found.”
Although our disposition, necessitating resentencing, obviates any consideration of defendant’s remaining assignments of error, which pertain to departure and consecutive sentences imposed by the trial court, we observe that, as defendant candidly acknowledges, those challenges are precluded by State v. Speedis,
The victim and her daughter shared a close relationship and the daughter frequently visited the victim’s apartment.
The parties both relied on Mejia in their arguments before the trial court.
“6 As we stated in Walch,