State v. Dorsey
| Decision Date | 25 February 1980 |
| Docket Number | No. 24756,24756 |
| Citation | 44 Or.App. 721,607 P.2d 204 |
| Parties | STATE of Oregon, Respondent, v. Craig William DORSEY, Appellant. ; CA 15028. |
| Court | Oregon Court of Appeals |
Marianne Bottini, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.
Jan P. Londahl, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Before JOSEPH, P. J., and LEE and RICHARDSON, JJ.
After trial to the court, defendant was convicted of kidnapping in the second degree 1 and rape in the first degree. 2 Defendant assigns as error (1) denial of his motion for judgment of acquittal on the grounds of insufficient evidence and (2) entry of a judgment of conviction for kidnapping in the second degree.
Defendant first asserts that the evidence at trial was insufficient to show either lack of consent to the transportation element of kidnapping or forcible compulsion in the alleged rape. The testimony of the victim, whom the judge found credible, indicated that the defendant grabbed the victim, slapped her, threw her down on his lap and held her with his arm underneath her neck while he drove out of town. After the victim was let out of the car, she tried to escape, but defendant restrained her, struck her on the head, ripped her shirt and bra, shoved her into the back of the car, ripped a button off her pants, and held her hands behind her head while having sexual intercourse with her. That evidence was patently sufficient to show lack of consent and forcible compulsion. The motion for judgment of acquittal was properly denied. State v. Krummacher, 269 Or. 125, 137-8, 523 P.2d 1009 (1974).
At the close of trial, the judge returned verdicts of guilty to both the kidnapping and rape charges. At the sentencing hearing, he said:
* * * "
The judgment order shows both convictions and also contains this language: "Kidnapping in the Second Degree charge is merged into Rape in the First Degree charge for purposes of sentencing."
The signed order recites separate convictions for rape and for kidnapping. This is not a situation where merger of the two convictions is compelled. See State v. Cloutier, 286 Or. 579, 598-99, 596 P.2d 1278 (1979).
For the purpose of determining whether kidnapping is incidental to another crime, the Supreme Court has identified the critical factor to be substantial interference as a matter of intent. State v. Garcia, 288 Or. 413, 605 P.2d 671, 676 (1980). In Garcia, distance was noted as one factor to be considered by the trier of fact in assessing whether the interference intended was substantial. In this case, the victim attempted to exit from defendant's vehicle but was continuously restrained by him as he drove her eight miles out of town to an isolated area. That was sufficient evidence to allow the court to conclude that defendant intended to interfere substantially with the victim's personal liberty. It was therefore not error to enter separate convictions for the two crimes.
ORS 137.010(5) 3 requires that a sentence be imposed for every conviction, unless imposition of sentence is suspended or the defendant is...
To continue reading
Request your trial
-
State v. Dinkel
...whether a separate crime had been committed. State v. Garcia, supra, 288 Or. at 417-418 n. 3, 605 P.2d 671. In State v. Dorsey, 44 Or.App. 721, 724, 607 P.2d 204 (1980), this court concluded on the basis of Garcia that distance is "one factor to be considered by the trier of fact in assessi......
-
State v. Montgomery
...by the jury in making the critical determination of whether the interference intended was substantial. See State v. Dorsey, 44 Or.App. 721, 724, 607 P.2d 204 (1980). We find that despite the fact that the victim was restrained for a brief period of time, evidence that the defendant conceale......
-
State v. Wolfe, C81-02-31165
...See, e.g., State v. Garcia, 288 Or. 413, 605 P.2d 671 (1980); State v. Little, 55 Or.App. 603, 639 P.2d 666 (1982); State v. Dorsey, 44 Or.App. 721, 607 P.2d 204 (1979); see also State v. Dinkel, 49 Or.App. 917, 621 P.2d 626 (1980) (kidnapping and robbery charges). The Garcia court determin......
-
State v. Jefferson
...P.2d 688, rev. den. 289 Or. 275 (1980), the defendant took the victim across the street and into some shrubbery. In State v. Dorsey, 44 Or.App. 721, 607 P.2d 204 (1980), the defendant held the victim in a vehicle and drove the vehicle eight miles out of town. The state particularly relies o......