People v. Bridges

Decision Date19 May 1980
Docket NumberNo. 79SA252,79SA252
Citation612 P.2d 1110,199 Colo. 520
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Walter T. BRIDGES, Defendant-Appellant.
CourtColorado Supreme Court

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Susan P. Mele-Sernovitz, Asst. Atty. Gen., App. Section, Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Michael J. Heher, Deputy State Public Defender, Denver, for defendant-appellant.

DUBOFSKY, Justice.

The defendant Walter Tyler Bridges appeals his convictions for first-degree sexual assault, first-degree kidnapping, and robbery. These convictions arose from a single incident, and sentences were imposed concurrently. We reverse the defendant's conviction for first-degree kidnapping, and affirm the sexual assault conviction and robbery convictions.

The victim, a Colorado Springs school teacher, worked until about 7:30 p. m. on October 1, 1976. As she left the school building and walked to her car parked at the curb along the school grounds, she saw the defendant standing near the building and then heard footsteps behind her as she approached her car. The defendant knocked her to the ground, struck her, tore at her clothes, and dragged her back to the school yard where he took her small backpack containing a wallet. When he moved away from her to see if anyone was coming, she attempted to run. He caught her and repeatedly hit her head against a retaining wall, saying "See if you ever run away again."

He then dragged her to another part of the well lighted school ground, and sexually assaulted her. The victim testified that the defendant's comments were nearly incoherent, and that she was afraid he was going to kill her. Someone in a neighboring house heard her scream and called the police. When the police arrived, the defendant ran, escaping through neighboring yards. The victim suffered multiple bruises and abrasions, and was hospitalized for four days for possible concussion.

The victim identified the defendant in a line-up on November 22, 1976. He then was charged with first-degree sexual assault, first-degree assault, and simple robbery. On January 10, 1977, the information was amended to add a count of first-degree kidnapping.

After conviction, the trial court sentenced the defendant to thirty-four to thirty-eight years in the penitentiary for the sexual assault, nine to ten years for robbery, and life imprisonment for the kidnapping, the sentences to be served concurrently. 1

The defendant contends on appeal that there was insufficient evidence of either asportation or an intent to force the victim to make a concession to secure her release to support a first-degree kidnapping conviction. The defendant also contends that the trial court erred in failing to include a mens rea element in the jury instruction on first-degree sexual assault.

I.

The kidnapping charge here appears to have been added almost as an afterthought. The incidents alleged as the basis of first-degree kidnapping, perhaps technically within the language of the statute, are not within the traditional definitions of kidnapping. At common law, kidnapping was a misdemeanor limited to the forcible abduction of a person to a country other than his own. In the 1930's, state legislatures expanded the traditional common law concept, creating new substantive crimes. Colorado defined simple kidnapping as a seizure and asportation or detention 2 and aggravated kidnapping as a taking for the purpose of "extorting money or ransom or other valuable thing or concession." 3 The expanded definitions brought within the scope of kidnapping conduct also punishable under some other criminal provision: e. g., extortion, homicide, assault, rape, and robbery. 4

The penalties for kidnapping are more severe than those for many of the crimes included within the kidnapping definition. The drafters of the Model Penal Code suggested that the scope of a crime like kidnapping, which has importance as a crime chiefly because it is an attempt to commit one of the other offenses, be restricted because "Examples of abusive prosecution for kidnapping are common. Among the worst is use of this means to secure a death sentence or life imprisonment for behavior that amounts in substance to robbery or rape, in a jurisdiction where these offenses are not subject to such penalties."

Model Penal Code section 212.1, Comment (Tent. Draft No. 11, 1960), pp. 13-14. 5

Notwithstanding the concern that a kidnapping charge can be used to obtain a sentence not otherwise available to the prosecution, it may still be charged as a separate offense additional to charges of rape or robbery. See People v. Hines, 194 Colo. 284, 572 P.2d 467 (1978); People v. Levy, 15 N.Y.2d 159, 204 N.E.2d 842, 256 N.Y.S.2d 793, cert. denied, 381 U.S. 938, 85 S.Ct. 1770, 14 L.Ed.2d 701 (1965); People v. Miles, 23 N.Y.2d 527, 245 N.E.2d 688, 297 N.Y.S.2d 913, cert. denied, 395 U.S. 948, 89 S.Ct. 2028, 23 L.Ed.2d 467 (1969). However, when a defendant, as here, is subject to enhanced punishment because his conduct, which constituted the crime of robbery and sexual assault, may also fit within the general language of the kidnapping statute, the restrictive scope recommended by the drafters of the Model Penal Code and a number of other state courts is needed. See, e. g., People v. Daniels, 71 Cal.2d 1119, 459 P.2d 225, 80 Cal.Rptr. 897 (1969); People v. Levy, supra; People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973); Wright v. State, Nev., 581 P.2d 442 (1978); People v. Lombardi, 20 N.Y.2d 266, 229 N.E.2d 206, 282 N.Y.S.2d 519 (1967); State v. Fulcher, 34 N.C.App. 233, 237 S.E.2d 909 (1977), aff'd, 294 N.C. 503, 243 S.E.2d 338 (1978).

Some jurisdictions have limited the scope of kidnapping statutes by the application of the merger doctrine. This permits conviction for multiple charges only if different evidence supports each charge. In three cases where the asportation and detention in an isolated place were greater than here, a New York court discussed the merger doctrine as one

"(based on an aversion to prosecuting a defendant on a kidnapping charge in order to expose him to the heavier penalty thereby made available, where the period of abduction was brief, the criminal enterprise in its entirety appeared as no more than an offense of robbery or rape, and there was lacking a genuine 'kidnapping' flavor . . . .

"The merger doctrine is intended to preclude conviction for kidnapping based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them."

People v. Cassidy, 40 N.Y.2d 763, 765-66, 767, 358 N.E.2d 870, 872, 873, 390 N.Y.S.2d 45, 47 (1976).

See also State v. Johnson, 92 Wash.2d 671, 600 P.2d 1249 (1979).

However, under the merger doctrine in Colorado, we compare the elements of the applicable statutes, not the particular evidence presented on these elements. People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974); People v. Hancock, 186 Colo. 30, 525 P.2d 435 (1974). A comparison of the provisions of section 18-3-301(1)(a), C.R.S.1973 (now in 1978 Repl. Vol. 8), infra, section 18-3-402, C.R.S.1973 (1976 Supp.; current version in 1978 Repl. Vol. 8), 6 and section 18-4-301(1), C.R.S.1973 (current version in 1978 Repl. Vol. 8), 7 the statutes under which the defendant was convicted, indicates that "each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932). Therefore, the merger doctrine does not apply in this case. In order to determine whether the defendant's conduct in the instant case constituted kidnapping, it is necessary to consider the appropriate construction of the statute and the sufficiency of the evidence to satisfy the statutory standards.

Section 18-3-301(1)(a), C.R.S.1973 (now in 1978 Repl. Vol. 8), defines first-degree kidnapping:

"(1) Any person who does any of the following acts with the intent thereby to force the victim or any other person to make any concession or give up anything of value in order to secure a release of a person under the offender's actual or apparent control commits first degree kidnapping:

(a) Forcibly seizes and carries any person from one place to another. " 8

The People argue that both the victim's conduct incident to the sexual assault and the victim's conduct incident to the robbery here were concessions towards which the intent required under the statute to sustain a first-degree kidnapping conviction was directed, and that the movement around the school playground incidental to the assault and robbery was sufficient asportation to meet the statutory requirement of carrying a person from one place to another. We first consider whether the circumstances of the sexual assault establish the intent to force a concession in order to secure the release of the victim. 9 We then consider whether the circumstances of the robbery establish the intent to force a concession or the giving up a thing of value in order to secure the release of the victim.

A. Sexual Assault

Colorado's first-degree kidnapping statute was amended in 1965. The language originally suggested by the Legislative Council study preceding the revision of the statute made clear that the revision was intended to apply to ransom and extortion situations. Colorado Legislative Council, Research Publication No. 98, Report to the Colorado General Assembly: Preliminary Revision of Colorado Criminal Laws, 18-20 (1964). The proposed language parallelled that of other state laws which are unquestionably ransom and extortion statutes. See, e. g., Ala.Code tit. 13, sec. 1-24 (1975; current version at tit. 13A, sec. 6a-43, 1977 Supp.); Okla.Stat.Ann....

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