State v. Gerlach

• Decision Date: 13 March 2013
• Docket Number: 200901597,A144947.
• Citation: 255 Or.App. 614,300 P.3d 193
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Malcolm Michael GERLACH, Defendant–Appellant.
• Court: Oregon Court of Appeals

255 Or.App. 614

300 P.3d 193

STATE of Oregon, Plaintiff–Respondent,

v.Malcolm Michael GERLACH, Defendant–Appellant.

200901597; A144947.

Court of Appeals of Oregon.

Argued and Submitted April 30, 2012.

Decided March 13, 2013.

David O. Ferry, Deputy Public Defender, argued the cause for appellant. Wtih him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and DUNCAN, Judge.

DUNCAN, J.

In this criminal case, defendant appeals from a judgment convicting him of ten crimes, including two counts of first-degree kidnapping, ORS 163.235, arguing that the trial court erred in holding that the antimerger statute, ORS 161.067(3), prevented the two kidnapping counts from merging.¹ We review for errors of law, State v. McConville, 243 Or.App. 275, 277, 259 P.3d 947 (2011), and conclude that that statute did not prevent the two counts from merging, and, therefore, defendant could properly be convicted of only one count of kidnapping. Accordingly, we reverse the two first-degree kidnapping convictions and remand for entry of a single first-degree kidnapping conviction and for resentencing.²

The relevant facts are as follows. Defendant, who was driving a stolen car, intentionally hit the 10–year–old victim while she was riding her bicycle. Defendant forced the victim into the car, drove her to a remote location, parked the car, and sexually assaulted her in the back seat. Then he got back into the driver's seat and drove off, with the victim still in the car, heading toward a forested, mountainous area. Police intervened, knocking the car off the road, and the victim was rescued.

As relevant here, defendant was charged with two counts of first-degree kidnapping.³ The prosecution's theory was that defendant's act of taking the victim from where he hit her on her bicycle to the location of the sexual assault constituted one kidnapping and that defendant's act of driving the victim from the location of the sexual assault to the place where she was rescued by the police constituted a second kidnapping.

Defendant stipulated that he committed all of the acts alleged in the indictment. He raised an insanity defense, which was heard by a jury. The jury found defendant guilty.

At sentencing, defendant argued that the two kidnapping counts at issue here should merge. Relying on the antimerger statute, ORS 161.067, the court held that the two counts did not merge because they constituted “repeated violations” of the kidnapping statute and were separated by a “sufficient pause in the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent.” ORS 161.067(3). It explained, “If [defendant] had time to pull up his pants, get out of the car, get in the car and start driving, he also had sufficient pause to let [the victim] go.” Defendant appeals, arguing that ORS 161.067 does not prevent the two kidnapping counts from merging, and, therefore, that he could be convicted of only one count.

Merger is governed by ORS 161.067, which provides:

“(1) When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.

“(2) When the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims. * * *

“(3) When the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are violations, except that each violation, to be separately punishable under this subsection, must be separated from other such violations by a sufficient pause in the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent. Each method of engaging in deviate sexual intercourse as defined in ORS 163.305, and each method of engaging in unlawful sexual penetration as defined in ORS 163.408 and 163.411 shall constitute separate violations of their respective statutory provisions for purposes of determining the number of statutory violations.”

Defendant argues, the state concedes, and we agree, that neither ORS 161.067(1) nor ORS 161.067(2) applies here. Consequently, the issue on appeal is whether ORS 161.067(3) prevented the two kidnapping counts from merging.

Defendant argues that he did not commit “repeated violations” of ORS 163.235, which defines first-degree kidnapping, and that, even assuming that there were multiple violations, there was no sufficient pause between violations. A person violates ORS 163.235—that is, commits first-degree kidnapping–––by committing a violation of the second-degree kidnapping statute, ORS 163.225, with any of certain enumerated purposes, including causing physical injury to the victim and terrorizing the victim.⁴ Thus, in order to determine whether a defendant repeatedly violated ORS 163.235, we must determine whether the defendant's conduct amounted to repeated violations of ORS 163.225, 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; or

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

The two first-degree kidnapping counts at issue on appeal alleged that defendant, “with the intent to interfere substantially with [the victim's] personal liberty, and without consent or legal authority, did unlawfully take [the victim] from one place to another, with the purpose of causing her physical injury[.]” Thus, we must determine whether defendant repeatedly violated ORS 163.225.⁵

Defendant argues that he committed only one kidnapping because a violation of the kidnapping statute lasts from the time that the victim is taken or confined until the time that the victim escapes or is released—that is, when the victim's personal liberty is restored.⁶ In support of his argument, defendant points out that, under ORS 161.067(3), to support separate convictions, “one crime must end before another begins.” State v. Barnum, 333 Or. 297, 303, 39 P.3d 178 (2002), overruled on other grounds by State v. White, 341 Or. 624, 147 P.3d 313 (2006); McConville, 243 Or.App. at 281, 259 P.3d 947;State v. Watkins, 236 Or.App. 339, 346, 236 P.3d 770,rev. den.,349 Or. 480, 246 P.3d 745 (2010). Applying that rule, he contends that he took the victim by forcing her into the car, and that her personal liberty was not restored—and, consequently, the first kidnapping did not end—until she was freed by the police.

The state remonstrates that defendant repeatedly violated ORS 163.225 because he took the victim “from one place to another,” ORS 163.225(1)(a), more than once. The Supreme Court has held that relatively minimal movement can satisfy that statutory requirement. See, e.g., State v. Walch, 346 Or. 463, 213 P.3d 1201 (2009) (holding that dragging the victim five to 15 feet and throwing her into the trunk of a car satisfied the asportation requirement). Here, the state contends, each of the two takings of the victim that it identifies easily satisfies the asportation element of the statute. The state reasons that “defendant committed a number of acts, each of which alone would constitute a violation of the statute. Therefore, defendant committed multiple violations of the statute.” ⁷ (Footnote omitted.)

Thus, the parties' arguments reduce to a dispute over what is required for one violation of ORS 163.225 to end and a new violation to begin. Defendant contends that the violation— i.e., the kidnapping—continues until the defendant ceases to interfere with the victim's personal liberty; the state responds that a violation ends as soon as the defendant has taken the victim “from one place to another,” ORS 163.225(1)(a), and, at that point, the only remaining question is whether there has been “a sufficient pause in the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent.” ORS 161.067(3).

Defendant has the better argument. Kidnapping is, at its core, the abduction of a person. It requires the taking or confining of a person by force, threat, or deception, with the intent to substantially interfere with the person's liberty, specifically, the person's freedom of movement. ORS 163.225(1) (defining kidnapping); ORS 163.215(1) (defining “without consent” for the purpose of the kidnapping statute); State v. Wolleat, 338 Or. 469, 475, 111 P.3d 1131 (2005) (“[T]he liberty interest that the [kidnapping] statute protects from interference is the interest in freedom of movement.”). In other words, kidnapping is the unauthorized seizure of a person with the intent to prevent the person's liberation, either by taking the person from one place to another or secretly confining the person in a place where the person is not likely to be found. See, e.g., State v. Murray, 340 Or. 599, 606, 136 P.3d 10 (2006) (carjacker's act of pushing driver onto passenger seat did not constitute kidnapping because, even assuming he had moved the driver from one place to another, there was no evidence that he “tried to keep [the driver] in the car” (emphasis in original)).

Because kidnapping is the seizure of a person for the purpose of substantially interfering with the person's liberty, it is a continuing crime. It continues for as long as the seizure...