State v. Dinkel

• Citation: 49 Or.App. 917,621 P.2d 626
• Decision Date: 22 December 1980
• Docket Number: No. 77-4375,77-4375
• Parties: STATE of Oregon, Respondent, v. David Douglas DINKEL, Appellant. ; CA 17952.
• Court: Court of Appeals of Oregon

Page 626

621 P.2d 626

49 Or.App. 917

STATE of Oregon, Respondent, v. David Douglas DINKEL, Appellant.

No. 77-4375; CA 17952.

Court of Appeals of Oregon.

Argued and Submitted Nov. 10, 1980.

Decided Dec. 22, 1980.

John Daugirda, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

Before GILLETTE, P. J., and ROBERTS and CAMPBELL, JJ.

GILLETTE, Presiding Judge.

Defendant was indicted for five counts of kidnapping in the first degree (ORS 163.235) and one count each of robbery in the first degree (ORS 164.415), burglary in the first degree (ORS 164.225), and unauthorized use of a motor vehicle (ORS 164.135). The jury found him guilty on all eight counts. The trial judge sentenced the defendant to five concurrent 20 year terms on the kidnapping charges and 20 years to run consecutively on the robbery charge, for a total of 40 years. ¹ The charges of burglary and unauthorized use of a motor vehicle were merged with the kidnapping and robbery charges respectively for the purposes of sentencing. ² On appeal, the defendant contends that: (1) his motion for acquittal on the kidnapping charges should have been granted; (2) the trial court erred in instructing the jury on the crime of kidnapping; (3) the five convictions for kidnapping should be merged into one and that conviction should merge with the conviction for robbery; ³ and (4) the court was without jurisdiction to impose a consecutive sentence upon the defendant. We conclude that all counts were properly submitted to the jury and that the sentence imposed was proper.

The facts are not in dispute. In late July, 1977, the defendant and his accomplice moved to the Eugene area and immediately began to plan a robbery. They discovered the name of the manager of a large retail store in the area, and after ascertaining his address, they spent several days in the manager's neighborhood observing his habits. On August 2, 1977, the defendant and his accomplice broke into the manager's home while no one was at home. Shortly thereafter, the manager's 15 year old son and a friend entered the house. The defendant met them at the door with a drawn butcher knife and escorted them into the family room. He informed them of his plan to rob the store and then tied the boys to chairs and gagged them. At some point, the television was turned on for the boys to watch and they were given beverages to drink. Later, the manager's wife and 18 year old son entered the house. They, too, were met at the door by the defendant with a drawn knife and taken to the family room where they were tied and gagged. The defendant assured them that he had no intention of hurting anyone and that they were just waiting for the father to get home so they could proceed to the store where he worked.

Shortly thereafter the manager arrived. The defendant met him at the door with a knife and took him to see his family. After making sure that his family was unharmed, the manager listened to the defendant's plan. He agreed to accompany the defendant to the store and deliver to him the available funds. Before leaving, the defendant and his accomplice separated the family members. The oldest son was moved into the laundry room and the wife was placed just outside the laundry room door. The youngest son was taken to the dining room where he was tied to a post while his friend was left in the family room. The defendant told them that they were going to take the manager to the store, get the cash, and then drop him off in the country. He informed the family that a paid sniper was outside the house with instructions to shoot anyone who attempted to leave and to set fire to the house if anyone screamed. The wires on the telephone were cut.

The defendant, his accomplice and the manager drove to the store, some eight miles away, in the manager's car. The robbery took place without incident. Meanwhile, the oldest son and the manager's wife untied themselves and the other boys, spliced the phone wires together and called the police. The defendant and his accomplice were stopped and taken into custody by the police as they were spotted on the freeway in the manager's car. The manager was driving the car at the time, and was unharmed.

The defendant was charged with five counts of kidnapping in the first degree by taking the named individuals from one place to another with the intent to interfere substantially with their personal liberty for the purpose of holding them as hostages in order to compel the manager to pay or deliver money as ransom. See ORS 163.235, 163.225. ⁴ He moved for a judgment of acquittal with respect to the charges relating to the four people in the house on the ground that they were not moved a sufficient distance or taken from one place to another as required to establish the crime of kidnapping. Additionally, he contends that all the kidnapping charges should have been dismissed because the holding and detention of the persons involved was merely incidental to the crime of robbery. This second ground is also the basis of his claim of merger; we examine it first.

In State v. Garcia, 288 Or. 413, 605 P.2d 671 (1980), the Oregon Supreme Court examined the 1971 revision of the kidnapping statutes as it related to the situation in which a kidnapping was committed in the course of a rape or robbery. After examining the minutes of the Legislative Commission, the court concluded:

"From this history we draw the inference that the Commission, and subsequently the legislature, intended that there be no conviction of the defendant for the separate crime of kidnapping where the detention or asportation of the victim is merely incidental to the accomplishment of another crime, particularly that of robbery or rape. On the other hand, we infer that the Commission and legislature perceived no reason not to prosecute and punish a malefactor for the separate crime of kidnapping where the detention or asportation is not merely incidental to the commission of the underlying crime." Id., at 420, 605 P.2d 671.

The Commission's notes reveal concern with the practice of separately prosecuting as kidnapping abductions which are incidental to or an integral part of the commission of another independent crime, such as robbery, in order to secure the death penalty or an increased sentence. The revision of the kidnapping statutes was designed to avoid this prosecutional practice. Id., at 417-418 n. 3, 605 P.2d 671. According to the court in Garcia, "the drafting technique utilized to accomplish (this) legislative purpose is manifested in the definition of the crime of kidnapping." Id., at 420, 605 P.2d 671. As finally drafted, ORS 163.225(1) provides that:

"(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, he:

"(a) Takes the person from one place to another, or

"(b) Secretly confines the person in a place where he is not likely to be found.

" * * * " (Emphasis supplied).

The court in Garcia further noted:

"The Commission reasoned that even though the malefactor's conduct offended the statutory injunctions against rape or robbery, he would be guilty of kidnapping also if in committing rape or robbery he took the victim a 'substantial distance' or held the victim 'a substantial period of time.' As finally enacted the law does not even require that there actually be a substantial interference with the victim's personal liberty; it is only necessary that the perpetrator have the 'intent to interfere substantially' with the victim's personal liberty to make the malefactor guilty of kidnapping if he commits an act proscribed in ORS 163.225. * * *.

"The end result is that the legislature has left it to the process of adjudication to determine whether there was an intent to interfere substantially." Id., at 420-421, 605 P.2d 671.

The proper way for the defendant to challenge a separate charge of kidnapping, where the kidnapping has occurred as part of a rape or robbery, is to move for a judgment of acquittal on the kidnapping charge.

" * * * (T)he trial judge must then determine whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to justify a rational factfinder in finding such intent (to interfere substantially with another's personal liberty) beyond a reasonable doubt." Id., at 421, 605 P.2d 671.

Where the trial court's ruling is adverse and assigned as error on appeal, it is then our function to determine whether there was sufficient evidence on the issue of intent to submit the case to the jury. If we find that there was no error,

" * * * the defendant will have been found to be guilty of the separate crime of kidnapping as intended by the legislature and therefore subject to punishment for that crime because he has been adjudged guilty of conduct which the legislature has found to be not 'merely incidental' to the rape." Id., at 422, 605 P.2d 671.

Viewed in this light, we conclude that there was sufficient evidence from which the jury could have found that the defendant intended to interfere substantially with the personal liberty of all his victims. Four of the victims were tied and gagged and told that if they attempted to leave they would be shot. The fifth was forced at knife point to drive some eight miles in his car to the store where he was then forced to assist in the robbery, and was still driving the defendant and his accomplice after the robbery. The trial judge carefully instructed the jury on the law as set forth in Garcia. There was no error.

The defendant contends that, because the four individuals inside the house were not taken...