Offenses Against Persons
Kidnapping in the second degree
Notes of Decisions
Movement of a victim from an automobile parked on the service station lot to the station building on the lot was asportation. State v. Talbot, 24 Or App 379, 545 P2d 599 (1976)
Evidence, inter alia, that defendant was a stranger to victim, that victim had left her car in haste, and that victim’s body was discovered some distance from car, was sufficient to support finding of second degree kidnapping. State v. Nulph, 31 Or App 1115, 572 P2d 642 (1977), Sup Ct review denied
Kidnapping was not merely incident to transaction involving also robbery and sodomy where defendant drove victim’s car several miles with bound victim in back seat. State v. Steele, 33 Or App 491, 577 P2d 524 (1978), Sup Ct review denied
California bail bondsmen took person from one place to another “without consent or legal authority” within meaning of this section where they pursued and captured bail violator in Oregon and returned him to custody of California court. State v. Epps, 36 Or App 519, 585 P2d 425 (1978), Sup Ct review denied
Where indictment alleged that defendant took child from its mother at direction of father and father had right to custody, taking was with consent of lawful custodian, and thus defendant could not be indicted under this section. State v. Edmiston, 43 Or App 13, 602 P2d 282 (1979)
Where defendant pursued victim, seized her and carried her to other side of road and attempted to force her down beside some shrubbery, finder of fact could fairly have inferred that defendant intended to interfere substantially with victim’s personal liberty within meaning of this section. State v. Cazares, 44 Or App 621, 606 P2d 688 (1980), Sup Ct review denied
Evidence that, inter alia, defendant grabbed and slapped victim, threw her in car and held her down while he drove out of town was sufficient to show lack of consent to transportation. State v. Dorsey, 44 Or App 721, 607 P2d 204 (1980)
Where defendant drove victim substantial distance in his pickup truck and detained her for over eight hours, this was not type of minimal displacement incidental to commission of sodomy and failure to merge kidnapping and sodomy convictions and sentences was not error. State v. Bateman, 48 Or App 357, 616 P2d 1206 (1980)
Where victims were tied and gagged and moved around their house but not taken beyond the house or moved a substantial distance, victims were “taken from one place to another” within meaning of this section. State v. Dinkel, 49 Or App 917, 621 P2d 626 (1980)
Legislative intent is that there may be separate conviction and sentence for kidnapping only when it is not incidental to another crime, and it may be found not to be incidental if defendant had intent to interfere substantially with victim’s personal liberty. State v. Garcia, 288 Or 413, 605 P2d 671 (1980); State v. Thomas, 139 Or App 308, 911 P2d 1237 (1996), Sup Ct review denied
Evidence that defendant concealed victim in bathroom of victim’s apartment and held victim at knifepoint so as to prevent victim from responding to police officer’s knocks was sufficient to support finding that defendant intended to substantially interfere with victim’s personal liberty and that defendant “secretly confined” victim in place where victim was “not likely to be found.” State v. Montgomery, 50 Or App 381, 624 P2d 151 (1981), Sup Ct review denied
Where defendant admitted that during robbery he moved employes and patrons from lounge to another room and kept door locked from five to ten minutes, there was sufficient evidence for rational jury to conclude beyond reasonable doubt that defendant had requisite intent to kidnap. State v. Rendahl, 58 Or App 688, 650 P2d 128 (1982)
Movement of upper two-thirds of victim’s body off driver’s seat of automobile did not meet this section’s requirement of taking person from one place to another. State v. Jefferson, 81 Or App 479, 726 P2d 392 (1986), Sup Ct review denied
Sentencing of defendants separately on convictions for kidnapping and for escape was proper because determination of separate punishment for kidnapping depended on whether defendant intended to interfere substantially with victim’s personal liberty. State v. Allen, 89 Or App 167, 747 P2d 384 (1987), Sup Ct review denied
To convict defendant of kidnapping by deception, prosecution must prove following elements: 1) defendant intended to interfere substantially with another’s personal liberty; 2) defendant made misrepresentation calculated to induce reliance by victim in order to accomplish interference; and 3) victim relied upon misrepresentation in choosing to accompany defendant from one place to another. State v. Amell, 303 Or 355, 736 P2d 561 (1987)
Act of taking person from one place to another and act of secretly confining person in place where not likely to be found violate two separate “statutory provisions” for proving first degree kidnapping. State v. O’Neall, 115 Or App 62, 836 P2d 758 (1992), Sup Ct review denied
There is no de minimis distance required to constitute taking of person from one place to another. State v. Thomas, 139 Or App 308, 911 P2d 1237 (1996), Sup Ct review denied
Offense is “crime of violence” for purposes of federal career offender sentencing guidelines. U.S. v. Williams, 110 F3d 50 (9th Cir. 1997)
Moving victim from one room to another while committing crime other than kidnapping, without intent to move victim farther or take victim to place of confinement, is insufficient to “substantially” interfere with personal liberty. State v. Wolleat, 338 Or 469, 111 P3d 1131 (2005)
“Liberty” interest this section protects from interference is interest in freedom of movement. State v. Wolleat, 338 Or 469, 111 P3d 1131 (2005)
Moving victim short distance in course of committing other crime does not constitute kidnapping unless defendant intended transporting victim greater distance than was accomplished or transporting victim to place of confinement. State v. Wolleat, 338 Or 469, 111 P3d 1131 (2005); State v. Claborn, 214 Or App 166, 162 P3d 374 (2007), Sup Ct review denied
Whether defendant had intent to substantially interfere with liberty of victim may be determined by considering both movement of victim and confinement of victim. State v. Nguyen, 221 Or App 440, 190 P3d 462 (2008), modified 228 Or App 241, 206 P3d 1219 (2009), Sup Ct review denied; State v. Mejia, 348 Or 1, 227 P3d 1139 (2010)
Asportation element of kidnapping is not met where actual distance victim is moved is not substantial and situation and context are same. State v. Odnorozhenko, 224 Or App 288, 197 P3d 562 (2008)
Determination of whether victim is moved “from one place to another” is situational and contextual and depends on multiple factors, including distance, limitation of personal freedom and increase in isolation. State v. Walch, 346 Or 463, 213 P3d 1201 (2009)
Person does not commit repeated violations of this provision by repeatedly taking victim from one place to another. State v. Gerlach, 255 Or App 614, 300 P3d 193 (2013), Sup Ct review denied
Where defendant during course of robbery forced victims at gunpoint from attached garage into bedroom inside house and from one bedroom to another bedroom defendant’s conduct was insufficient to establish asportation element of kidnapping under this section. State v. Ibabao, 270 Or App 508, 348 P3d 336 (2015)
Where defendant and victim checked into motel room, motel manager and others knew that defendant and victim had checked into room, defendant attacked victim throughout evening and threatened victim with further violence if victim called for help when visitors knocked on door, defendant secretly confined victim. State v. Vaughan-France, 279 Or App 305, 379 P3d 766 (2016), Sup Ct review denied
Law Review Citations
51 OLR 486, 490-492 (1972); 15 WLR 23 (1978)