State v. Kinslow, 10CR0107

• Decision Date: 26 June 2013
• Docket Number: A146208.,10CR0107
• Citation: 257 Or.App. 295,304 P.3d 801
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Danyelle Lynne KINSLOW, Defendant–Appellant.
• Court: Oregon Court of Appeals

257 Or.App. 295

304 P.3d 801

STATE of Oregon, Plaintiff–Respondent,

v.Danyelle Lynne KINSLOW, Defendant–Appellant.

10CR0107; A146208.

Court of Appeals of Oregon.

Argued and Submitted Dec. 28, 2012.

Decided June 26, 2013.

Stephanie J. Hortsch, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Michael A. Casper, Deputy Solicitor General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Rebecca M. Johansen, Assistant Attorney General.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

SCHUMAN, P.J.

Defendant and the victim were using methamphetamine at defendant's house when defendant was angered by a text message she read on the victim's phone. Defendant summoned to the house an accomplice who, along with defendant, assaulted the victim at the house over the course of a day and a half. After the victim escaped, defendant was charged with ten different offenses, including first-degree kidnapping and various drug-related offenses. Defendant was convicted on all counts and now appeals. On appeal, she argues that (1) the trial court erred in denying her motion for a judgment of acquittal on the kidnapping charge, because she did not move the victim from “one place to another,” ORS 163.225(1)(a); (2) the trial court erred in denying her motions for judgments of acquittal on the charges of manufacturing, delivering, and possessing methamphetamine, because the state presented insufficient evidence that those offenses were “commercial drug offenses” within the meaning of ORS 475.900; and (3) the trial court erroneously admitted a laboratory report that identified substances found at the house as methamphetamine, because the author of that report did not testify. We reverse defendant's kidnapping conviction, remand for resentencing, and otherwise affirm.

Because defendant challenges the trial court's denial of her motions for judgments of acquittal, we state the underlying facts in the light most favorable to the state. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). On a Saturday evening, defendant and the victim were using methamphetamine in defendant's house, which was one half of a duplex. At some point, defendant read text messages on the victim's phone, including a message in which the victim referred to spanking defendant's four-year-old son. After reading the text, defendant was angered and called one of her acquaintances, Warren, and asked him to come to the house. Defendant offered to pay Warren to beat up the victim, and Warren agreed to assault the victim in exchange for a pair of shoes and methamphetamine.

When Warren arrived, he walked through the front door of defendant's house and hit the victim in the living room. He told the victim to empty his pockets onto a bed in the living room, and the victim placed his cell phone and some cash on the bed. Warren then began calling the victim a child molester and hit and stomped on the victim's face. After approximately 20 minutes, Warren picked up a studded belt and used it to beat the victim. By that point, the assault had moved to the kitchen area, which was connected to the living room. Defendant remained present throughout the beating, standing in her living room.

After a short break, Warren began throwing things at the victim, striking him in the eye with a cigarette lighter and a pen. He also sprayed bleach in the victim's face while the victim was sitting on a couch. After the bleach incident, Warren “pretended like everything was fine,” offering the victim water and a cigarette, and they smoked cigarettes in the living room. At some point that night, defendant also picked up a belt and threatened to punch the victim with it.

The following morning, Warren resumed the beatings. Warren and defendant left the victim alone in the house for a few hours on Sunday afternoon, but the victim was too scared and exhausted to escape. The victim awoke to find defendant back in the house. He asked defendant whether he could leave the house, and defendant told him to wait until Warren returned.

On Sunday evening, Warren returned and began hitting the victim again. Warren sprayed a bottle of fabric deodorizer in the victim's face, threw the bottle at him, and sat on the victim's chest. Also that evening, Warren said to the victim, “Come here, I want to talk to you.” The victim reluctantly followed Warren to the bathroom, where Warren proceeded to strangle the victim with a belt. When the victim was about to pass out, Warren loosened the belt and then retightened it. He also held a knife to the victim's throat and slightly cut his neck. Defendant, meanwhile, was in the living room. She could not see into the bathroom from the living room, but she could hear what was happening.

That same evening, Warren and the victim went outside to smoke a cigarette. Warren told the victim “to stand in the dark so nobody would see [him]” and that he “better not run.” Warren stood within an arm's reach of the victim while they were outside.

At some point during the ordeal, defendant called someone on the phone to find a cabin where Warren could take the victim. Warren, meanwhile, told the victim that, at the cabin, he would either kill him or break his hands, tie him up, and leave him there.

The victim eventually passed out again from exhaustion. When he woke on Monday morning, Warren was gone and defendant and her son were asleep on the bed in the living room. The victim walked out the front door and went to a friend's house, where he was encouraged to go to the hospital. The victim went to the hospital, and police were notified of his injuries.

The following week, police executed a search warrant at defendant's home, where they discovered a “dirty” scale, multiple Ziploc baggies, a methamphetamine bong, a snort tube, and drug records. Defendant admitted to police that she had sold methamphetamine; in fact, drug users were present and purchasing drugs from defendant at times when the victim was being assaulted. When searching defendant's vehicle, which was parked at the house, police found the victim's cell phone.

Defendant subsequently was charged with first-degree kidnapping, first-degree robbery, unlawful use of a weapon, fourth-degree assault, strangulation, menacing, manufacture of methamphetamine, delivery of methamphetamine, possession of methamphetamine, and child neglect. The trial court granted a motion for a judgment of acquittal on the first-degree robbery charge and instructed the jury on the lesser-included offense of third-degree robbery. Defendant was convicted, as an accomplice or principal, on all counts.

On appeal, defendant advances five assignments of error. In her first assignment, she argues that the trial court erred in denying her motion for a judgment of acquittal on the kidnapping charge, because the evidence was legally insufficient to establish the asportation element of the crime—that is, that the victim was taken “from one place to another,” as alleged in the indictment.¹ In defendant's view, the parts of the house—the living room area, the kitchen area, and the bathroom—were not qualitatively different places, and any movement among those areas merely was incidental to other crimes (assault, menacing, and strangulation). See State v. Sierra, 349 Or. 506, 513, 254 P.3d 149 (2010), adh'd to as modified on recons.,349 Or. 604, 247 P.3d 759 (2011) (“[A] defendant can be said to have moved the victim from ‘one place’ to ‘another’ only when the defendant changes the position of the victim such that, as a matter of situation and context, the victim's ending place is qualitatively different from the victim's starting place.”). The state responds that, when Warren “moved the victim from the living room to the bathroom, the destination was, in context, a ‘qualitatively different’ place.” ²

The parties' competing asportation arguments echo those that we recently addressed in State v. Opitz, 256 Or.App. 521, 301 P.3d 946 (2013). In Opitz, the defendant argued that his movement of the victim between rooms in a single apartment was not the type of movement “from one place to another” that is required for the crime of kidnapping. We began our analysis by discussing Sierra, the Supreme Court's most recent decision on the subject of asportation. Because that discussion is equally instructive here, we reproduce part of it: “In Sierra, as pertinent to our analysis here, two victims were patrons at a truck stop restaurant. 349 Or. at 509 . Those two victims ‘heard a commotion’ in the adjoining convenience store and entered through a door near the front of the store to investigate. Id. They found the defendant pointing a loaded crossbow at a store clerk, who was on his knees behind a counter near the back of the store. Id. at 509–10 . Hoping to assist the clerk, one victim ‘attempted to divert [the] defendant's attention so that [the other victim] would be able to restrain’ the defendant. Id. The defendant yelled at the victims to leave. Id. When they refused to leave, the defendant pointed the crossbow at them and directed them to move to the back of the store and kneel beside the clerk. Id. The victims did as they were instructed. Id. In relation to those acts, and with respect to those two victims, the defendant was convicted of second-degree kidnapping. We affirmed without opinion. State v. Sierra, 228 Or.App. 149, 206 P.3d 1153 (2009).

“On review, the parties' dispute centered on ‘the meaning of the act element of kidnapping by asportation.’ Sierra, 349 Or. at 512, 254 P.3d 149. In resolving the issue, the Supreme Court examined State v. Murray, 340 Or. 599, 136 P.3d 10 (2006), and State v. Walch, 346 Or. 463, 213 P.3d 1201 (2009).

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“Against that precedential backdrop [of Murray and Walch ], the defendant in Sierra argued that, ‘as a...