State v. Goodhue

• Citation: 833 A.2d 861
• Decision Date: 05 September 2003
• Docket Number: No. 02-046.,02-046.
• Parties: STATE of Vermont v. Greg L. GOODHUE.
• Court: Vermont Supreme Court

833 A.2d 861

STATE of Vermont v. Greg L. GOODHUE.

No. 02-046.

Supreme Court of Vermont.

September 5, 2003.

Jane Woodruff, Executive Director, Department of State's Attorneys, Montpelier, for Plaintiff-Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

SKOGLUND, J.

¶ 1. Defendant appeals from the district court's judgment of conviction following a jury trial on charges of burglary, attempted sexual assault and kidnapping. Defendant challenges the court's denial of his motion for judgment of acquittal on the sexual assault and kidnapping charges. We affirm the conviction for attempted sexual assault and reverse the conviction for kidnapping.

¶ 2. Twelve-year-old Amanda and her friend, thirteen-year-old Carolyn, were in the kitchen at Amanda's family home when a strange man entered the kitchen through the back door and ordered Carolyn into the adjoining bathroom. Amanda followed them in. The man threw Carolyn to the bathroom floor and got on top of her. He tried to get his hand down Carolyn's pants. Amanda began throwing objects at him. The man got off of Carolyn and pushed Amanda into a counter. He then returned to Carolyn, again pushed her to the floor and ripped her shirt in the process. He unbuttoned and unzipped Carolyn's pants and tried to take them off. At this point, a door slammed and the man quickly got off Carolyn and fled the scene. Amanda testified that the event lasted from three to five minutes. The girls went to a neighbor's house and reported what had happened. The girls ultimately identified the man as defendant. He was charged with kidnapping, attempted sexual assault, and burglary.

¶ 3. At the close of the State's case, defendant moved for judgment of acquittal pursuant to V.R.Cr.P. 29 on the kidnapping and sexual assault charges, arguing respectively that the evidence failed to prove that Carolyn was restrained for a substantial period of time and that the evidence failed to establish the attempted sexual assault as there was "no commencement of the consummation." The court denied these motions. Defendant was convicted on all three counts, and was sentenced to five to ten years for attempted sexual assault, to be served concurrent with a sentence of ten to fifteen years for kidnapping. He was sentenced to five to ten years for burglary, to be served consecutive to his other sentences. Defendant again raised motions for judgment of acquittal on the above grounds in a post-verdict filing, which the court denied. This appeal followed.

¶ 4. On appeal, the standard of review for the denial of a motion for judgment of acquittal is "whether, taking the evidence in the light most favorable to the state and excluding modifying evidence, the state has produced evidence fairly and reasonably tending to show the defendant guilty beyond a reasonable doubt." State v. Carrasquillo, 173 Vt. 557, 559, 795 A.2d 1141, 1145 (2002) (mem.) (internal quotations omitted).

¶ 5. The State adduced sufficient evidence of an attempted sexual assault to sustain the jury's verdict of guilty. Defendant was charged with attempted sexual assault under 13 V.S.A. § 3252(a)(3) (defendant engaged in a sexual act with another person who was under the age of 16 and was not his spouse). Vermont's attempt statute, 13 V.S.A. § 9(a), reads: "[a] person who attempts to commit an offense and does an act toward the commission thereof, but by reason of being interrupted or prevented fails in the execution of the same, shall be punished as herein provided...." In State v. Hurley, 79 Vt. 28, 64 A. 78 (1906), we described what was necessary to constitute an attempt. "The act must be of such a character as to advance the conduct of the actor beyond the sphere of mere intent. It must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation." Id. at 31, 64 A. at 78.

¶ 6. The evidence of the attack on Carolyn showed that defendant's actions had advanced from "mere intent" to the "commencement of the consummation" of a sexual assault. As the trial court wrote:

the acts already committed by Defendant were so far along the continuum of translating intent into action that the contemplated crime had taken on an air of inevitability, but for the sudden slamming of the back door which startled Defendant and caused him to cease and flee.

There was sufficient evidence presented to show, beyond a reasonable doubt, that defendant was guilty of attempted sexual assault. Therefore, the court correctly denied his motion for judgment of acquittal on that charge.

¶ 7. Defendant next argues that the trial court improperly refused to grant a motion for acquittal on the kidnapping count. Defendant argues that the evidence was insufficient to prove beyond a reasonable doubt that the victim was restrained for a substantial period of time because the time period was brief and because any confinement was related to the underlying offense of attempted sexual assault. Resolution of this claim requires an examination of the development of the law relating to kidnapping.

¶ 8. Kidnapping was traditionally defined as "`the forcible abduction or stealing away of a man, woman, or child, from their own country and sending them into another.'" State v. Innis, 433 A.2d 646, 652 (R.I.1981) (quoting 4 Blackstone, Commentaries on the Laws of England *219 (2 Sharswood ed. 1860)). The idea that the victim must be carried beyond certain established boundaries appeared in early statutory development of the offense in this country. For example, prior to 1904, the crime of kidnapping was defined in Vermont statutes as the carrying off or removal of a person from this state. See 1894 V.S. § 4912; 1880 R.L. § 3865; 1862 G.S. 112, § 31; 1839 R.S. 94, § 24. In 1904, the crime of kidnapping was broadened to include asportation into the state and detention or confinement:

Whoever, without legal authority, forcibly or secretly confines or imprisons another person within this state against his will, or forcibly carries or send such person out of this state, or forcibly seizes and confines or inveigles or kidnaps another person with intent either to cause him to be secretly confined or imprisoned in this state against his will, or to cause him to be sent out of this state against his will, or in any way held to service against his will, shall be punished by imprisonment in the state prison for a term not exceeding ten years, or by a fine of not more than ten thousand dollars, or both.

1904, No. 149, § 1. Although the statute has been replaced, during the eighty-six years that this statute was in place, only the penalties changed.

¶ 9. Under early kidnapping statutes, many state and federal courts followed what has been described as the traditional rule in American jurisprudence, holding that any asportation, that is, carrying away of the victim, no matter how short in distance or duration, was sufficient to establish the crime of kidnapping. A leading case espousing this point of view is People v. Chessman, 38 Cal.2d 166, 238 P.2d 1001 (1951). In Chessman, the victim was moved only twenty-two feet before undergoing a sexual assault by the defendant. The California Supreme Court upheld the defendant's kidnapping conviction and stated, "[i]t is the fact, not the distance, of forcible removal which constitutes kidnapping in this state." Id. at 1017. Likewise in People v. Florio, 301 N.Y. 46, 92 N.E.2d 881, 882-83 (1950), the New York Court of Appeals expressed its view that under the applicable statute, any confinement or movement constituted a kidnapping even if such movement was undertaken only to facilitate another crime. See also Virgin Islands v. Berry, 604 F.2d 221, 225 (3d Cir.1979) (acknowledging, but ultimately rejecting this view); State v. Jacobs, 93 Ariz. 336, 380 P.2d 998, 1002 (1963); Bailey v. State, 146 Ga.App. 774, 247 S.E.2d 588, 590-91 (1978); Wilson v. State, 253 Ind. 585, 255 N.E.2d 817, 818-19 (1970); Harris v. State, 78 Wis.2d 357, 254 N.W.2d 291, 296-97 (1977).

¶ 10. Today however, a majority of courts have moved away from the traditional approach and now hold that kidnapping statutes do not apply to unlawful confinements or movements incidental to the commission of other felonies. State v. La France 117 N.J. 583, 569 A.2d 1308, 1309-12 (1990); State v. Innis, 433 A.2d at 654; see also F. Wozniak, Seizure or Detention for Purpose of Committing Rape, Robbery, or Other Offense as Constituting Separate Crime of Kidnapping, 39 A.L.R.5th 283, § 3 (1996) (collecting cases). This departure was prompted by a recognition that a literal reading of the kidnapping statutes can lead to overzealous enforcement, with the result that "persons who have committed such substantive crimes as robbery or assault— which inherently involve the temporary detention or seizure of the victim—will suffer the far greater penalties prescribed by the kidnapping statutes." Berry, 604 F.2d at 226.

¶ 11. This narrowing of the applicability of kidnapping laws is illustrated by two leading cases, People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842, 844 (1965), and People v. Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, 231-32 (1969). In Levy, the New York Court of Appeals reexamined the Florio definition, found it overbroad, and rejected its earlier construction of the kidnapping law. The court observed that, if read literally, the kidnapping statute would "overrun" other crimes, notably robbery and rape. Levy, 256 N.Y.S.2d 793, 204 N.E.2d at 844. It expressly limited application of the kidnapping statute to kidnapping in the conventional sense, which envisages the asportation of a person under restraint and compulsion, and not merely restraint alone. Id. at 843-44. In Daniels, the California Supreme Court reconsidered its position in Chessman regarding the degree of...