State v. ThomasState v. Thomas
- Reporters:
- , ,
- Before:
- Leeson
Dеfendant was convicted by a jury of two counts of burglaiy in the first degree,
Defendant and the victim once lived together but, after their breakup, the victim obtained a restraining order against defendant. The victim’s testimony at trial presents the following account of the incident that led to defendant’s convictions. On July 6, 1993, the victim came home from shopping and watching a baseball game. Defendant was in her home, camе out from behind a curtain, grabbed her, shut and locked the front door and pushed her onto a couch. He held her by the hair, plaсed a knife to her throat and repeatedly threatened to kill her. He then pulled her by her hair into the bathroom, threw her to the floor and prevented her from standing up. The victim struggled briefly with defendant and was cut on the thumb by his knife. When she realized that resistance was futile, she stopped struggling and defendant sat her on the toilet and demanded, under threat of death, that she write a note assigning to him one-half interest in her house and truck. He left the bathroom to find a pen and paper, but prevented her from escaping by rеpeatedly returning and forcing her to sit down, brandishing the knife and threatening to kill her. When he returned with the paper, he closed the dоor and barred it by opening a drawer. He told victim what to write, and pulled her hair and threatened her with the knife whenever she stopped writing. Defendant then pulled down victim’s pants and raped her, first forcing her to bend over the side of the bathtub and then to lay prоpped up by the toilet. The victim escaped after a friend entered the house through an unlocked back door and *311 hеard her yelling for help. The victim’s friend forced her way into the bathroom, prompting defendant to flee.
Defendant subsequently was convicted on the multiple counts described above. On appeal, he argues that there was insufficient evidence to support a finding that the asportation requirement of kidnapping in
“(1) A person cоmmits the crime of kidnapping in the second degree if, with intent to interfere substantially with another’s personal liberty, and without consent оr 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.”
Analysis under the statute first requires a showing that defendant took the victim from one place to another; then the inquiry becomes whethеr defendant had the intent to interfere substantially with the victim’s personal liberty. State v. Jefferson, 81 Or App 479, 482, 726 P2d 392, rev den 302 Or 461 (1986).
*312
The statutory phrase, “takes a person from one рlace to another,” means exactly what it says,
State v. Talbot,
24 Or App 379, 383, 545 P2d 599,
rev den
(1976), and has repeatedly been cited to defeat the theory of
de minimis
asportation advanced by defendant.
See State v. Dinkel,
49 Or App 917, 924, 621 P2d 626 (1980) (victims moved from one room of house to another);
State v. Cazares,
44 Or App 621, 623, 608 P2d 688,
rev den
289 Or 275 (1980) (victim сarried from middle of road to shrubbery beside road);
cf. State v. Montgomery,
50 Or App 381, 386, 624 P2d 151,
rev den
290 Or 727 (1981) (victim was “secretly confined” in his own bathroom within meaning of
We next address defendant’s argument that the movemеnt of the victim into the bathroom was “only incidental to the other crimes,” and did not manifest an “intent to interfere substantially with the victim’s pеrsonal liberty.”
In Garcia, the Supreme Court reviewed the history of the kidnapping statute and concluded that the legislature intended that a perpetrator be punished for the “separate crime of kidnapping where the * * * asportation is not merely incidental to the commission of the underlying crime.” 288 Or at 420. (Emphasis in original.) Kidnaрping is not incidental to the commission of another crime where the perpetrator has the intent to interfere substantially with thе victim’s liberty. Id. at 421; Montgomery, 50 Or App at 385. Whether the perpetrator had that intent is a question of fact to be determined in the adjudicative process. Garcia, 288 Or at 421. Thе distance a victim was moved is one factor to be considered by the trier of fact in assessing the substantiality *313 of the defendant’s intended interference with the victim’s liberty. 2 Dinkel, 49 Or App at 924.
Defendant claims that “he had forced [the victim] into the bathroom for privacy.” The victim’s testimony, by contrast, portrays a frightening tale of capture and imprisonment. She was dragged by the hair into the bathroom, threatened rеpeatedly with a knife, thrown to the floor and prevented from standing, prevented from leaving while defendant searched for a pen and paper, forced to write a note while being terrorized and held captive, confined in the bathroom behind a closed door barred by an open drawer and, finally, raped. Defendant’s desire for “privacy” assured the victim’s loss of liberty. Undеr these facts, there was ample evidence from which a rational jury could find beyond a reasonable doubt that defendant intended to interfere substantially with the victim’s liberty. The trial court did not err in denying defendant’s motion for a judgment of acquittal.
Affirmed.
Notes
“(1) A person commits the crime of kidnapping in the first degree if the person violatesORS 163.225 with any of the following purposes:
“(a) To compel any person to pay or deliver mоney or property as ransom; or
“(b) To hold the victim as a shield or hostage; or
“(c) To cause physical injury to the victim; or
“(d) To terrorize the victim or another person.
“(2) Kidnapping in the first degree is a Class A felony.”
In his pro se supplemental brief, defendant assigns error to a trial court ruling that sustained an objectiоn made by the state during defendant’s closing argument. According to defendant, that ruling prevented the jury from considering distance as a factor in its determination of whether defendant intended to interfere substantially with victim’s personal liberty. Defendant’s assignment is without merit.