State v. Erby, 51977
| Decision Date | 14 July 1987 |
| Docket Number | No. 51977,51977 |
| Citation | 735 S.W.2d 148 |
| Parties | STATE of Missouri, Respondent, v. Lonnie C. ERBY, Appellant. |
| Court | Missouri Court of Appeals |
Holly G. Simons, Asst. Public Defender, St. Louis, for appellant.
William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant appeals from jury convictions of two counts of kidnapping, four counts of forcible rape with a deadly weapon or dangerous instrument, one count of forcible rape, two counts of forcible sodomy with a deadly weapon or dangerous instrument, one count of armed criminal action, and one count of stealing without consent. Defendant was sentenced to a total of 115 years' imprisonment. We affirm.
In his sole issue on appeal, defendant proffers the trial court should have granted a judgment of acquittal at the close of all of the evidence with respect to the two kidnapping charges and the armed criminal action charge which had one of the kidnappings as the underlying felony. Defendant claims the actions to support the kidnappings, specifically moving the victims, were merely incidental to the commissions of the rapes and sodomies.
In each of the two attacks for which defendant was convicted of kidnapping, defendant accosted the victim on the street, placed one hand over the victim's mouth, threatened the victim with a knife, forced the victim into an abandoned building, and raped and sodomized the victim.
Section 565.110, RSMo 1986, in part provides:
1. A person commits the crime of kidnapping if he unlawfully removes another without his consent from the place where he is found or unlawfully confines another without his consent for a substantial period, for the purpose of
* * *
* * *
(4) Facilitating the commission of any felony or flight thereafter; ...
As explained in State v. Jackson, 703 S.W.2d 30, 32-33 (Mo.App.1985), kidnapping should not be charged where the movement or confinement is merely incidental to another offense. However, disallowing a kidnapping charge whenever another offense is committed would make subsection 4 of § 565.110.1 meaningless.
In determining whether the moving or confining is incidental to a crime other than the kidnapping, we must look to see if there was any increased risk of harm or danger to the victim that was not present as a result of the other...
To continue reading
Request your trial
-
Williams v. Armontrout
...if the movement or confinement increases the risk of harm to the victim over and above that of the underlying offense. State v. Erby, 735 S.W.2d 148, 149 (Mo.Ct.App.1987); State v. Jackson, 703 S.W.2d 30, 33 (Mo.Ct.App.1985). In Erby, the Missouri Court of Appeals held that a sexual assault......
-
Williams v. Armontrout
...that otherwise meets the elements of a kidnapping when the abduction is "merely incidental to another offense." State v. Erby, 735 S.W.2d 148, 149 (Mo.Ct.App.1987); see, e.g., State v. Jackson, 703 S.W.2d 30, 32-33 (Mo.Ct.App.1985); State v. Jackson, 703 S.W.2d 23, 24-25 (Mo.Ct.App.1985); S......
-
Blair v. Armontrout
...is constitutional error in the trial court's determination that there was no submissible issue of kidnapping. See State v. Erby, 735 S.W.2d 148, 149 (Mo.Ct.App.1987); State v. Jackson, 703 S.W.2d 30, 32-33 (Mo.Ct.App.1985). Blair's motion for new trial claimed that the trial court erred in ......
-
State v. Moore
...(“Erby”) as their assailant. Erby was subsequently tried, convicted and sentenced in connection with both crimes. See State v. Erby, 735 S.W.2d 148 (Mo.App.E.D.1987). During the trial, both V.V. and K.P. testified that Erby was their rapist. In 2003, at the behest of the Innocence Project, ......