For his participation in acts surrounding a violent encounter with one of his acquaintances, defendant was convicted of kidnapping in the first degree, ORS 163.235; robbery in the first degree, ORS 164.415; and assault in the fourth degree, ORS 163.160. On appeal, he argues that the trial court erred in denying his motion for a judgment of acquittal on the kidnapping charge, in refusing to give a lesser-included offense instruction as to the robbery charge, and in imposing consecutive sentences. We affirm.
Because the jury found defendant guilty, we state the facts in the light most favorable to the state.
State v. Cervantes,
Defendant was among the people who delivered the drugs and, along with the victim and others, he consumed some of them. Later that night, having learned that the victim still had most of her cash, defendant returned. He was in Amanda’s car. Employing a ruse, the details of which are not relevant to this appeal, defendant had an accomplice lure the victim out of Jeremy’s house to look at the car to see if it had been damaged in an accident. She did so. Returning to the house, she heard a rustling in the bushes. Defendant emerged. He positioned himself behind the victim and put her in a choke hold, and then he pushed her to the ground. He then rolled her over and began strangling her from the front.
During the course of the struggle, defendant dragged the victim five to 15 feet to the side of the car. When she tried to stand up, he leaned over her back and kept her bent down. She asked why he was attacking her, and he said, “I want your money, bitch. Give me your money.” She then fell to the ground. He picked her up and put her into the trunk of the car, but he was unable to close it because she locked her knees. Instead, he then threw her out of the trunk *89 and demanded that she go into the house and bring him her money.
By that time, the victim had a large gash on her head, along with several scrapes and bruises. She stumbled back into the house. When she did not return to the car, defendant left. Inside, friends cleaned her up and took her to the hospital, where she related the evening’s events to police officers. They later found and arrested defendant in an apartment, where they also found $250 in cash. When the police arrested defendant, his hands were red and swollen, and there was a cut on bis knuckle. In a taped conversation to his wife from the Clatsop County Correctional Facility, defendant admitted that he “put [the victim] in a headlock. And she bumped her head when [he] tried to stick her in the trunk. She got a couple of cuts on her head, and a bloody nose from a headlock.”
After the close of the state’s evidence, defendant moved for a judgment of acquittal on the ground that the movement of the victim was not substantial enough to constitute kidnapping. The trial court denied defendant’s motion, and he renews it on appeal. We review the trial court’s denial of a motion for a judgment of acquittal to “determine whether, viewing the evidence in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Cervantes,
Kidnapping in the first degree as charged in this case is the same as kidnapping in the second degree, with the added element that the purpose of the kidnapping is to cause physical injury to the defendant. ORS 163.235(l)(c). Kidnapping in the second degree, in turn, is defined as follows:
“(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 [other] person from one place to another [.]”
ORS 163.225. Thus, to defeat defendant’s motion for a judgment of acquittal, the state had to present evidence from
*90
which a rational juror could find that defendant “(1) took the victim from one place to another; (2) with the intent to interfere substantially with her personal liberty; (3) without consent or legal authority; and (4) with the purpose of physically injuring her.”
State v. Wolleat,
In the present case, physical injury and lack of consent are not at issue. The focus is the physical act of moving the victim “from one place to another,” and the mental state of “intent to interfere substantially with [the victim’s] personal liberty.” The Supreme Court’s recent cases dealing with those elements do not present an easily applied analysis. In
Wolleat,
the court explained that to satisfy the physical “movement from one place to another” or “asportation” element, the state need not prove “that a defendant [took] a victim a specific distance, nor does it require that the distance be substantial.”
However, the second element — “intent to interfere substantially with [the victim’s] personal liberty” — obviously can be met without actual interference; intention alone is sufficient. Id. Further, “in order for the interference to be substantial, a defendant must intend either to move the victim a ‘substantial distance’ or to confine the victim for a ‘substantial period of time.’ ” Id. at 475. Thus, under Wolleat, the asportation element is met by any actual movement, but to meet the “intent to interfere” element, the state needs to prove intent to move a substantial distance. Wolleat does not offer any guidance as to what a substantial distance is other than to conclude, based on some examples appearing in the kidnapping statute’s legislative history, that moving the victim 15 to 20 feet from the bedroom of a home to the living room while committing another crime was not substantial. “[T]hat movement is not sufficient, by itself, to give rise to an intent to interfere substantially with the victim’s liberty * * *.”Id at 478.
In
State v. Murray,
Thus, Wolleat addresses the “intent to interfere substantially” element and concludes that it requires proof of intent to move a substantial distance. Murray addresses the “one place to another” element and concludes that it requires proof of actual substantial movement. In the present case, it is clear that the evidence and reasonable inferences drawn from it support the finding that, when defendant put the victim in the trunk and tried to close it, he intended to move her a substantial distance from one place to another — that is, he intended to drive away with her. Indeed, that is almost the only inference one might draw from the evidence. Thus, under Wolleat, the “intent to interfere” element is met, and Murray does not disturb that conclusion because it simply does not address the “intent to interfere” element. The issue thus reduces to the “one place to another” element. Murray could be seen as supporting defendant’s position with respect to that element. As noted, Murray equates movement from “one place to another” with “substantial” movement, and holds that neither movement from the driver’s seat to the passenger’s seat nor movement of a few feet in a car qualifies.
We conclude, however, that the movement in the present case was substantial. In Murray, the court noted,
*92 “the ‘place’ in which something or someone may be found and from which that something or someone may be taken is situational and contextual. It is, among other things, a function of the object to be moved, as well as a function of the area in which the movement occurs.”
In his second assignment of error, defendant argues that the court should not have denied his request to instruct the jury on second-degree robbery. According to defendant, second-degree robbery is a lesser offense included within first-degree robbery. We disagree. That is not the law. “To require an instruction on a lesser-included offense, the lesser offense must
necessarily
be subsumed in the greater offense in all cases.”
State v. Lee,
*93 “The defendant * * * did unlawfully and knowingly use physical force upon [the victim] and did attempt to cause serious physical injury to [the victim], while in the course of committing theft of property, to-wit: money, with the intent of preventing and overcoming resistance to the said defendant’s taking of the said property and retention of the said property after the taking of the said property!]”
Second-degree robbery contains, as one of its elements, the requirement that a person either “[Represents by word or conduct that the person is armed with what purports to be a dangerous or deadly weapon” or is “aided by another person actually present.” ORS 164.405(1). Thus, the indictment did not set forth all of the elements required for second-degree robbery.
Finally, defendant argues in his third assignment of error that the trial court’s imposition of consecutive sentences was unconstitutional in two respects, both derived from the United States Supreme Court’s decisions in
Apprendi v. New Jersey,
Under ORS 137.123(4), where (as here) a defendant has been convicted of more than one offense “arising out of a continuous and uninterrupted course of conduct, the sentences imposed for each resulting conviction shall be concurrent” unless the court finds:
“(a) That the criminal offense for which a consecutive sentence is completed was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or
*94 “(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct.”
ORS 137.123(5). Under
Apprendi,
the predicate facts must be found by the jury, and they must be found beyond a reasonable doubt.
Apprendi,
In the present case, defendant argues that the court erred in not instructing the jury regarding the reasonable doubt standard. However, defendant did not timely raise that objection. After the jury returned its guilty verdict, the trial court discussed with both parties the special verdict that it planned to submit to jurors regarding consecutive sentences. During that discussion, defendant’s attorney suggested different ways to phrase the question on the special verdict form so that the verdict would be clear. Defendant’s attorney never suggested that the special verdict question needed to state that the predicate facts had to be found beyond a reasonable doubt, nor did he object to the trial court’s final phrasing of the question. The trial court submitted the following question to the jury:
“Was the crime of kidnapping in the first degree an indication of defendant’s willingness to commit more than one criminal offense? A mere incidental violation of a separate criminal offense would result in a no answer.”
The necessary number of jurors answered “yes.” It was not until a month later, at the sentencing hearing, that defendant’s attorney argued for the first time that the special verdict was erroneous because it did not require the jurors to make their finding beyond a reasonable doubt. That objection was not timely, and therefore was not preserved.
We can review an unpreserved claim of error only if we determine that the error is apparent on the face of the record. ORAP 5.45(1);
Ailes v. Portland Meadows, Inc.,
However, it is not apparent that the jury was not properly instructed under the rule announced in Ice. Although the special verdict question did not mention the applicable burden of proof, the trial court’s instructions to the jury at the beginning of the trial were arguably sufficient to instruct the jury that all facts, including the facts at issue at sentencing, had to be found beyond a reasonable doubt. During the preliminary instructions, the trial court instructed the jurors:
“So the burden in this case is on the State of Oregon to prove the defendant’s guilt beyond a reasonable doubt.
Some of you may have been jurors in other types of cases, particularly civil cases where you heard the standards of proof such as proof by a preponderance of the evidence or proof by clear and convincing evidence. In a criminal case, though, the State’s proof must be more convincing. And, again, it’s proof beyond a reasonable doubt.”
(Emphases added.) Because the trial court did not explicitly instruct the jury that the special verdict finding had to be made beyond a reasonable doubt, the trial court may have erred. That error, however, is not apparent — that is, “obvious, not reasonably in dispute,”
Ailes,
*96
Defendant also argues that his sentence is unlawful because the indictment by which he was charged did not state the facts required to support imposition of consecutive sentences.
See Apprendi,
Affirmed.
Notes
We acknowledged in
Jury
that applying the “law existing at the time of the appeal can lead to ostensibly incongruous results: A trial court can be reversed for ‘plain error,’ when its ruling comported with — or even was compelled by — the law existing at the time the court ruled.”