State v. Garcia

• Decision Date: 22 January 1980
• Citation: 288 Or. 413,605 P.2d 671
• Parties: STATE of Oregon, Respondent, v. Konrad Neal GARCIA, Petitioner. TC C 78-01-00208; CA 11307; SC 26150.
• Court: Oregon Supreme Court

Page 671

605 P.2d 671

288 Or. 413

STATE of Oregon, Respondent, v. Konrad Neal GARCIA, Petitioner.

TC C 78-01-00208; CA 11307; SC 26150.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 7, 1979.

Decided Jan. 22, 1980.

Thomas J. Crabtree, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief were Gary D. Babcock, Public Defender, and Patricia Burnett, Law Clerk, Salem.

[288 Or. 414-A] Thomas H. Denney, 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.

LENT, Justice.

The defendant was charged with rape in the first degree, ORS 163.375; kidnapping in the first degree, ORS 163.235; and three counts of sodomy in the first degree, ORS 163.405. All of the charges arose out of conduct involving the same victim in Portland, Oregon on January 8, 1978. A jury found the defendant guilty on all five counts. The trial court sentenced the defendant to maximums of 20 years on the rape charge, 20 years on the kidnapping charge, and 20 years on each sodomy charge, each sentence to run consecutively, for a total term not to exceed 100 years.

The defendant appealed to the Court of Appeals, which affirmed the conviction from the bench, 37 Or.App. 675, 588 P.2d 687 (1978). This court allowed review, ORS 2.520; 287 Or. 129, 592 P.2d 1021 (1979).

The defendant raises three principal arguments on review. He contends that a separate conviction and sentence for kidnapping is contrary to the legislative intent of ORS 163.235; that the several sexual offenses should be treated as a single criminal episode and therefore should not be punished separately; and that if the separate sexual offenses are punished separately, the sentences should be held excessive under substantive sentence review, ORS 138.040.

At about 8:30 p. m. on January 8, 1978, the defendant, walking on a street in Portland, grabbed the victim, a female who was walking alone. He put his hand over her mouth and a knife at her throat and told her not to say anything. He forced her to cross the street and walk two blocks and then across another street. He then took her behind a house and forcibly raped and sodomized her. These events consumed about forty minutes.

I

The defendant argues that a separate conviction and sentence for kidnapping is improper. The answer to this contention is found in the relevant kidnapping statutes.

The 1971 legislature adopted the present kidnapping statutes ¹ as part of the complete revision of the Oregon Criminal Code. The 1967 legislature created the Oregon Criminal Law Revision Commission to revise the criminal laws of this state. Carefully kept records of the proceedings of the Commission and of its subcommittees were preserved and, accordingly, provide a rich source for determination of the drafters' intent. The Commission's first draft of the kidnapping sections was adopted from the Model Penal Code ² and contained the following commentary:

"Current kidnaping statutes apply to abductions which are incidental to or an integral part of the commission of an independent crime such as robbery or rape where the victim is removed and confined for a given period to effectuate the criminal purpose. Where the detention period is brief there is no genuine kidnaping. However, cases of this nature are sometimes prosecuted as kidnaping in order to secure the death penalty or life imprisonment for behavior that amounts in substance to rape or robbery in jurisdictions where these offenses are not subject to such penalties. People v. Chessman, 38 Cal.2d 166, 238 P.2d 1001 (1951). The Model Penal Code and the New York Revised Penal Law have tried to exclude this type of case from first degree kidnaping by differentiating on the basis of the movement and duration of detention of the victim. The Model Penal Code provides for kidnaping only where the kidnaper removes the victim from his place of residence or business, or a substantial distance from the vicinity where he is found, or if the kidnaper unlawfully confines the victim for a substantial period in a place of isolation. New York has selected the arbitrary figure of twelve hours to designate the point in the course of a criminal project at which the abduction becomes a major offense in itself and not merely a facet of some other crime."

The minutes following the presentation of the first draft indicate that the drafters considered the situation where kidnapping charges are brought in addition to robbery or rape charges. The minutes reveal that the drafters intended to prevent conviction and sentencing for kidnapping when the detention was merely incidental to a rape or robbery. ³ The difficulty facing the drafters, however, was to provide the flexibility to cover diverse kidnapping fact situations, yet rationally restrict prosecutorial discretion to punish. ⁴ The language of the proposed kidnapping statutes was revised three times. ⁵ The commentary following Each revision included the above-quoted passage. ⁶ This passage was also included in the tentative and final draft commentaries, but the drafters added the following paragraph: ⁷

"The proposed draft solves this problem (of excluding abductions which are incidental to or an integral part of the commission of an independent crime) by strictly limiting kidnapping in the first degree to only those instances where the actor's purpose in abducting falls within subsection (1) of (ORS 163.235 (Kidnapping in the First Degree))."

This paragraph of commentary is less than clear. In the preceding paragraph of commentary, the drafters discussed the problem of unwarranted kidnapping convictions where the abduction in merely incidental to a robbery or rape, citing the Model Penal Code and New York approaches to this problem. The "solution," however, refers only to Oregon's first degree kidnapping statute, and states that this offense is strictly limited by the words of the statute itself.

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.

The drafting technique utilized to accomplish the legislative purpose is manifested in the definition of the crime of kidnapping. 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." See n. 3, Supra. ⁸ 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 by ORS 163.225. We find nothing in legislative history to indicate the legislature intended by its adverb "substantially" anything other than was intended by the Commission in its use of the adjective "substantial."

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. Compare Miss Lavorato's discourse in footnote 3, Supra.

The mechanics of determining whether there is a separate crime of kidnapping do not initially depend on a post verdict inquiry. Assume that one is charged, as in the case at bar, with both rape and kidnapping against the same victim. To raise the issue of his liability for a separate conviction of kidnapping, at the appropriate time the defendant can test the sufficiency of the state's evidence to support the element of his intent by a motion for judgment of acquittal on the kidnapping charge. ORS 136.445. As in other cases the 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also, Pilon v. Bordenkircher, --- U.S. [288 Or. 422] ----, 100 S.Ct. 7, 62 L.Ed.2d 1 (1979). If the ruling is adverse, the claim of error has been preserved and the contention of want of the requisite intent may be presented to the appellate courts in case of a verdict of guilty. If on appeal it is held that there was trial court error in this respect, the conviction resulting from the verdict will be reversed. If there is held to be 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.

There is no occasion in this case for this court to determine whether there was sufficient evidence to prove the element of intent under ORS 163.225. There was no motion for acquittal in the trial court. The trial court instructed that the jury must find such intent beyond a reasonable doubt. The jury so found. Defendant requested no special instruction concerning this element. Defendant did not raise this issue at the time of sentencing. ⁹ In the Court of Appeals the defendant was unable to make any assignment of error in this respect which could comply with Rule 7.19, Rules of Procedure, Supreme Court and Court of...