State v. Jefferson
| Decision Date | 23 December 1986 |
| Citation | 726 P.2d 392,81 Or.App. 479 |
| Parties | STATE of Oregon, Respondent, v. Archie Lee JEFFERSON, Appellant. 10-85-06339; CA A37706. |
| Court | Oregon Court of Appeals |
Stephen J. Williams, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.
Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.
Defendant was indicted in three counts for kidnapping in the second degree, ORS 163.225, robbery in the third degree, ORS 164.395, and unauthorized use of a vehicle. ORS 164.135. The court, sitting without a jury, found him guilty on all counts. It merged the conviction for unauthorized use of a vehicle into the robbery conviction. Defendant only appeals the conviction for kidnapping in the second degree, contending that his acts failed to meet the asportation requirement of ORS 163.225(1)(a). We conclude that the asportation requirement was not met, and we reverse.
The facts are not in dispute. At about 3:00 a.m. on July 23, 1985, the victim left a friend's apartment and entered her automobile. She began to drive down an alley when defendant walked in front of the car. She stopped to avoid hitting him, stalling the car in the process. Defendant asked for a ride "to the end of the street," but she refused. He then opened the driver's door and pushed his way onto the driver's seat. The upper two-thirds of her body was pushed off the driver's seat to the area between the bucket seats, where the emergency brake was located; however, her feet remained in the area of the driver's pedals. She attempted to fight off defendant, and he tried to elbow her out of the way as he unsuccessfully attempted to start the car by turning the key in the ignition. She screamed as she continued trying to push him out of the car. When another person came out of a house nearby, defendant jumped out of the car and ran off. She estimated that the episode in the car lasted from one and a half to five minutes. Defendant was apprehended a short distance away.
At trial, defendant moved for a judgment of acquittal on the second degree kidnapping count. The court denied the motion, and defendant assigns the denial as error.
The statute under which defendant was convicted, ORS 163.225(1), provides:
The leading case interpreting the kidnapping statutes, ORS 163.225 (second degree kidnapping) and ORS 163.235 (first degree kidnapping), is State v. Garcia, 288 Or. 413, 605 P.2d 671 (1980). After an extensive discussion of legislative history, the court concluded:
"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 the 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." 288 Or. at 421, 605 P.2d 671. (Emphasis in original.)
The state argues that the proper focus of inquiry under Garcia is whether defendant had the requisite intent to interfere with the victim's liberty. That argument ignores the phrase in Garcia: "if he commits an act proscribed by ORS 163.225." The proper interpretation of the statute and Garcia is that the defendant must first either take the victim from one place to another or secretly confine the victim in a place where the person will not likely be found; then the inquiry becomes whether the defendant had the requisite intent to interfere substantially with the victim's personal liberty. Any other reading would render superfluous the requirement that the defendant commit the acts proscribed by ORS 163.225(1)(a) or (b). We agree with defendant that the movement of the upper two-thirds of the victim's body off the driver's seat does not meet the statutory requirement of "tak[ing] the person from one place to another."
This case can be distinguished on its facts from those cases decided since Garcia which are cited by the state in its brief. In each of those, the asportation of the victim met the requirement of ORS 163.225(1)(a). In State v. Larsen, 44 Or.App. 643, 606 P.2d...
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Whaley v. Thompson
...whether that doctrine is still viable in the aftermath of State v. Allen, 301 Or. 35, 717 P.2d 1178 (1986). See State v. Jefferson, 81 Or.App. 479, 483, 726 P.2d 392 (court lacked power to modify judgment to second degree kidnaping when trier of fact was never asked to consider that charge)......
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State v. Fox
...from which the jury could find that he had "take[n] the [victim] from one place to another" under ORS 163.225(1)(a). See State v. Jefferson, 81 Or.App. 479, 726 P.2d 392, rev. den. 302 Or. 461, 730 P.2d 1251 (1986).2 ORS 163.425 provides, in part:"(1) A person commits the crime of sexual ab......
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State v. Thomas
...the inquiry becomes whether defendant had the intent to interfere substantially with the victim's personal liberty. State v. Jefferson, 81 Or.App. 479, 482, 726 P.2d 392, rev. den. 302 Or. 461, 730 P.2d 1251 The statutory phrase, "takes a person from one place to another," means exactly wha......
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State v. Morales
...have been entered. State v. Cannon, 65 Or.App. 327, 330, 671 P.2d 761 (1983). We cannot make that determination here. In State v. Jefferson, 81 Or.App. 479, 726 P.2d 392, rev. den. 302 Or. 461, 730 P.2d 1251 (1986), we held that the evidence did not support the defendant's conviction of kid......