State v. Anderson

• Docket Number: A177245
• Decision Date: 28 December 2023
• Parties: STATE OF OREGON, Plaintiff-Respondent, v. ANDREW ANDERSON, Defendant-Appellant.
• Court: Oregon Court of Appeals

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329 Or.App. 754

STATE OF OREGON, Plaintiff-Respondent,
v.
ANDREW ANDERSON, Defendant-Appellant.

A177245

Court of Appeals of Oregon

December 28, 2023

Argued and Submitted December 22, 2022

Resubmitted en banc September 25, 2023

Deschutes County Circuit Court 19CR28984; Beth M. Bagley, Judge.

Per C. Olson argued the cause for appellant. Also on the briefs were Megan E. McVicar and Hoevet Olson, PC.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Chief Judge, and Ortega, Egan, Tookey, Shorr, Aoyagi, Powers, Mooney, Kamins, Pagán, Joyce, Hellman, and Jacquot, Judges.

En Banc

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[329 Or.App. 755] OPINION

[329 Or.App. 756] MOONEY, J.

A jury found defendant guilty of two separate crimes involving the same victim, based on distinct sets of facts that occurred on different days. Defendant appeals from the judgment of conviction that was thereafter entered against him for each of those crimes: kidnapping in the second degree, ORS 163.225, and menacing, ORS 163.190(1), both of which constituted domestic violence, ORS 132.586(2).

Defendant and the victim, J, moved to Bend from California in 2014 to start a legal marijuana business. They were married in 2015. The marijuana business was successful; the marriage was not. Several days after the last of the events that formed the basis of the jury's guilty verdicts, J moved to California to be with her parents. She sought a restraining order against defendant in that state and filed for legal separation. Defendant, in turn, filed for divorce in Oregon. The events that are the subject of this criminal proceeding came to light through those legal proceedings.

I. KIDNAPPING IN THE SECOND DEGREE

A. The First Assignment: Denial of MJOA

Defendant first assigns error to the trial court's denial of his motion for judgment of acquittal (MJOA) arguing that the evidence would not support a verdict against him on the charge of kidnapping in the second degree. ORS 136.445. We review the denial of an MJOA "in the light most favorable to the state to determine whether a rational trier of fact, making reasonable inferences, could have found the essential elements of the crime proved beyond a reasonable doubt." State v. Hall, 327 Or. 568, 570, 966 P.2d 208 (1998). If the evidence is sufficient to support the jury's verdict against defendant, then we are required to affirm it. Id.

1. The facts.

The events giving rise to the kidnapping charge occurred early in the morning on a day in December 2016 or January 2017. Defendant approached J in the master bedroom of their home. Given that it was winter in central Oregon with an outdoor temperature of 20 degrees

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[329 Or.App. 757] Fahrenheit, we think it reasonable to infer that the home was heated. J was lying on her side of the bed in her bathrobe and underwear and was either under the bedsheets or sitting on top of them. Defendant ordered J to "[g]et out of the room." When J did not comply, defendant grabbed her by the hood of her robe and pulled her off of the bed and onto the floor.

Defendant dragged J, on her back, by the hood of her robe, approximately 50 linear feet: across the bedroom and then through the bedroom door, down the hallway, through the foyer, over the door jamb and out the front door of the house, down wooden stairs, and into the front yard where he yanked her robe from her body and left her alone in the yard, exposed to the elements, in the snow and ice that had accumulated in the yard. After removing J's robe, defendant went back inside the house, locked the door, and then physically held the door closed.

After a few minutes, J remembered that her car was unlocked and that there was a garage door opener in it. She was, therefore, able to enter the garage and regain access to the house from there.

2. The kidnapping statute.

The state charged defendant with kidnapping in the second degree under ORS 163.225(1)(a), which provides:

"(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[.]"

To establish the charged crime the state was, thus, required to prove three elements beyond a reasonable doubt:

1. That defendant took J from one place to another (the asportation element),

2. Without J's consent, and

3. With the intent to interfere substantially with J's personal liberty (the intent element).

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[329 Or.App. 758] Because the state charged the kidnapping offense as involving domestic violence, it was also required to prove domestic violence as an element of the offense. ORS 132.586(2).^[1]

Defendant argues that the state's evidence fell short on both the intent element and the asportation element. As to the intent element, he contends that "there was no evidence that would allow the jury to find that he intended either to move [J] a substantial distance or to confine her for a substantial period of time[.]" As for the asportation element, he claims that "the evidence did not establish movement to a qualitatively different place or that th[e] movement was not merely incidental to the commission of another offense." We take the elements in turn, beginning with the asportation element, because defendant's intent is relevant only if the evidence supports that he took J from one place to another.

3. The asportation element.

We determine whether there was sufficient evidence for the jury to conclude beyond a reasonable doubt that defendant took J "from one place to another" by considering the distance that he moved her, and whether that movement operated to limit J's personal liberty and to increase her isolation. State v. Walch, 346 Or. 463, 475, 213 P.3d 1201 (2009). There is no threshold distance beyond which defendant was required to move J to qualify that movement as "asportation" under the kidnapping statute. Indeed, "relatively minimal movement" can satisfy the statutory requirement. State v. Gerlach, 255 Or.App. 614, 618, 300 P.3d 193, rev den, 353 Or. 787 (2013). That is because the essence of kidnapping by asportation is not in the distance traveled, it is in the change of place as a means of limiting the victim's ability to move freely about. We, thus, consider distance taking into account "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." State v. Sierra, 349 Or [329 Or.App. 759] 506, 513, 254 P.3d 149 (2010),

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affd as modified, 349 Or. 604, 247 P.3d 759 (2011).

Defendant does not dispute that he moved J approximately 50 feet, from beginning to end. But, in his view, by moving J from a place inside the house to a place outside the house he committed "the opposite" of kidnapping. Exactly what he would call it is unclear, but he would not call it kidnapping because by moving J out of the house, he "left her no more isolated than when she was inside." The dissent goes further and asserts that "locking someone out (rather than in) is the opposite of confining them." 329 Or.App. at 777 (Aoyagi, J., dissenting). We disagree.

By moving J from a protected setting in which she was warm and clothed with access to heat, electricity, and plumbing, to a setting unprotected from the elements, which were extreme at the time, with no clothing or shoes on or available to enable her to safely get to someone who might help, the jury could rationally infer beyond reasonable doubt that the move isolated J and limited her ability to move freely about. It could reasonably conclude that the place from which defendant moved J and the place to which he moved her were qualitatively different places.

4. The intent element.

Intent is an element of kidnapping distinct from the element of asportation. The state was, thus, required to prove beyond reasonable doubt that when defendant moved J from one place to another, he did so with the "intent to interfere substantially with [her] personal liberty!.]" ORS 163.225(1). "[T]he liberty interest that the statute protects from interference is the interest in freedom of movement * * *." State v. Wolleat, 338 Or. 469, 475, 111 P.3d 1131 (2005). "[I]n most cases the question whether the defendant intended to interfere substantially with the victim's liberty will present a question of fact for the jury." Id. at 478. Wolleat instructs us that the defendant must intend that the interference be something more than movement that is merely incidental to another crime, and that the 15 to 20 feet of actual movement under the circumstances present in that case was not

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[329 Or.App. 760] sufficient to allow an inference that the defendant intended to move the victim a substantial distance. Id. at 475.

Unlike Wolleat, the record here supports that when defendant moved J from her bed to the front yard, he did so on purpose, not as an unintended consequence of an assault that became mobile. The dissent argues that defendant simply "remov[ed] and exclude[ed]" J from her house-in other words, that he intended to kick her out-and not that he intended to kidnap her. 329 Or.App. at 777-78 (Aoyagi, J., dissenting). But isolation, control, and distance-like kidnapping-are not two-dimensional concepts. The dissent focuses on distance as a linear measurement of physical space between two points. But distance is more complex than that. The kidnapping statute requires the state to prove that defendant moved J from one place to another with the "intent to interfere substantially with [her] personal liberty." ORS 163.225(1)(a). Importantly, the word "distance" is not in the kidnapping statute. Evidence of distance-and of confinement-is certainly...