State v. Jackson, 49359

• Decision Date: 19 November 1985
• Docket Number: No. 49359,49359
• Citation: 703 S.W.2d 23
• Parties: STATE of Missouri, Respondent, v. Mitchell JACKSON, Appellant.
• Court: Missouri Court of Appeals

Page 23

703 S.W.2d 23

STATE of Missouri, Respondent, v. Mitchell JACKSON, Appellant.

No. 49359.

Missouri Court of Appeals,

Eastern District,

Division One.

Nov. 19, 1985.

Motion for Rehearing and/or Transfer

Denied Dec. 23, 1985.

Application to Transfer Denied

Feb. 18, 1986.

Dave Hemingway, Public Defender, St. Louis, for appellant.

William L. Webster, Atty. Gen., John M. Morris, Christine M. Szaj, Asst. Attys. Gen., Jefferson City, for respondent.

SMITH, Judge.

Defendant appeals from his conviction by a jury of kidnapping, rape, and armed criminal action and the resultant sentences, imposed by the court, of life imprisonment, and two thirty year terms. The 30 year sentence for armed criminal action was made concurrent to the life sentence; the 30 year sentence for rape was consecutive.

The victim was walking on a street in St. Louis County near her home. Defendant grabbed her around the neck and while holding a loaded gun to her head "walked" her approximately one block to a more isolated location behind a garage. There he raped her. He then left after warning the victim not to leave for ten minutes or he would shoot her. Defendant presented evidence of an alibi.

Defendant first attacks the kidnapping conviction on the basis that the movement of the victim was of such brief duration both as to distance and time that it was simply incidental to the rape attack. Sec. 565.110, RSMo 1978, provides that kidnapping occurs when the defendant "unlawfully removes another without his consent from the place where he is found ... for the purpose of ... (4) Facilitating the commission of any felony...." Under the language of the statute the evidence was clearly sufficient to establish the elements of the crime. In the Comment to the 1973 Proposed Code the intention of the drafters is set forth reflecting a more restricted use of the kidnapping charge than the language of the statute might indicate. It is there stated:

"Kidnapping is designed to cover those situations where the confinement or movement of a person without his consent involves a high risk of injury or death, or where it creates a harm (including the terror of the victim) that is not adequately covered by another offense.... Kidnapping is not meant to cover the confinement or movement which is merely incidental to the commission of another offense.... How much movement or confinement is needed as a proper basis for kidnapping cannot be defined precisely as it will vary according to the circumstances...." Sec. 565.110, VAMS

As the comment further recognizes, kidnapping under subsection (4) will nearly always involve the commission of another offense and to that degree will, under that subsection, be incidental to the other offense. We have addressed that matter before. State v. Gormon, 584 S.W.2d 420 (Mo.App.1979) ; State v. Johnson, 637 S.W.2d 157 (Mo.App.1982) . In attempting to reconcile the broad language of the statute with the narrower limits of the comment, the Missouri courts have looked to the increase in the risk of harm or danger to the victim from the movement or confinement. State v. Stewart, 615 S.W.2d 600 (Mo.App.1981) ; State v. Davis, 624 S.W.2d 72 (Mo.App.1981) ; State v. Lint, 657 S.W.2d 722 (Mo.App.1983) [4, 5]. This increased risk of harm or danger may arise either from the movement itself or from the potential of more serious criminal activity because of the remoteness or privacy of the area to which the victim is moved. State v. Stewart, supra. The time involved in the movement or the distance it covers are not the determining factors.

Here the risk of harm to the victim was increased by both the movement and the remoteness of the location to which she was moved. During the movement, much of it on a public street, defendant held a loaded gun to the...