State v. Montgomery

Decision Date07 April 1981
Docket NumberCA,No. 42401,42401
Citation50 Or.App. 381,624 P.2d 151
PartiesSTATE of Oregon, Respondent, v. Jesse James MONTGOMERY, Appellant. 17484.
CourtOregon Court of Appeals

Thomas J. Crabtree, Deputy Public Defender, Salem, argued the cause for appellant. With him on brief was Gary D. Babcock, Public Defender, Salem.

Virginia L. Linder, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

Before GILLETTE, P. J., and ROBERTS and CAMPBELL, JJ.

CAMPBELL, Judge.

Defendant was indicted for kidnapping in the first degree, burglary in the first degree, assault in the fourth degree, and menacing. The jury found him guilty of assault in the fourth degree, menacing, and kidnapping in the second degree. He was additionally convicted of the lesser included offense of criminal trespass in the first degree. At sentencing, the trial court found that the criminal trespass, assault and menacing convictions all merged into the kidnapping conviction. The court then sentenced defendant to the legal and physical custody of the Corrections Division for a period not to exceed six years. On appeal, defendant contends that (1) his motion for acquittal on the kidnapping charge should have been granted, and (2) the trial court erred by entering a "civil" judgment against the defendant. We affirm.

On December 16, 1979, defendant's brother, Bobby Montgomery, had a fight with the victim, Earl Eberly, a 61-year-old man, in Eberly's apartment in Lincoln City. As he left Eberly's apartment, Bobby said he would get help and come back. The victim was afraid and called the police. Before police arrived, defendant and his brother forced their way back into the victim's apartment and began to beat him.

After the assault began, defendant and his brother dragged the victim into the bedroom. Defendant's brother pulled all the curtains in the kitchen and shut the front door. The beating continued until the brother saw a police car in front of the apartment. Defendant and his brother then pulled the victim into the bathroom. Defendant's brother gave defendant a knife which defendant held to the victim's throat while the victim lay on the floor. Defendant's brother told defendant to cut the victim's throat if he made a sound.

Defendant shut the door to the bathroom and his brother went outside and talked to the police officers in the apartment parking lot. Defendant's brother told the police that the victim had left his apartment and gone to a tavern. While one officer talked to the brother, the other went to the apartment. The door was locked but the curtains into the living room were open. From this window the officer could not see into the bedroom or bathroom areas. He shook the door and knocked but there was no response from within. After talking to Bobby Montgomery, the police officers returned to patrol.

The victim testified that Bobby then came back in and that Bobby and defendant continued to hit the victim. They next took the victim outside, demanded his car keys, took him to a neighboring apartment and shortly thereafter let him go, warning him not to call the police. Defendant was arrested about an hour and a half later. He ultimately admitted that he had held the victim while his brother beat him, that the victim had been held at knifepoint, and that the victim was locked in the bathroom of the apartment at one point.

The defendant was charged with kidnapping in the first degree by secretly confining the victim in a place where he was not likely to be found with intent to interfere substantially with his personal liberty and for the purpose of causing physical injury to the victim. See ORS 163.225(1), quoted below; ORS 163.235(1). 1 Defendant moved for a judgment of acquittal on the ground that the evidence was insufficient to support his conviction because a person is not secretly confined in a place where he is not likely to be found if he is confined in a room of his own apartment. Defendant further argues on appeal that the victim was restrained for too brief a period of time to justify a separate conviction for kidnapping. Additionally he contends that the detention was merely incidental to defendant's crimes of assault, criminal trespass and menacing and was not committed with a separate intent unrelated to those crimes.

ORS 163.225 provides:

"(1) A person commits the crime of kidnapping in the second degree if, when intent to interfere substantially with another's personal liberty, and without consent or legal authority, he:

"(a) Takes the person from one place to another, or

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

For the purpose of determining whether kidnapping is incidental to another crime, the critical factor is not actual substantial interference with a person's liberty but that the perpetrator have the intent to interfere substantially with the victim's liberty. State v. Garcia, 288 Or. 413, 605 P.2d 671 (1980); State v. Dinkel, 49 Or.App. 917, 621 P.2d 626 (1980). Additionally, the malefactor must commit an act proscribed by ORS 163.225(1)(a) or (b). State v. Garcia, supra.

Defendant challenges the sufficiency of evidence on the issue of intent by contending that his detention of the victim was merely incidental to his other crimes and was too brief to constitute "kidnapping." In proposing the language which became ORS 163.225, the Criminal Law Revision Commission declined to set arbitrary time limits on an abduction before it can be considered a separate crime. State v. Dinkel, supra, at 631. Thus, brevity of confinement is merely one factor to be considered by the jury in making the critical determination of whether the interference intended was substantial. See State v. Dorsey, 44 Or.App. 721, 724, 607 P.2d 204 (1980).

We find that despite the fact that the victim was restrained for a brief period of time, evidence that the defendant concealed the victim in the bathroom, at knifepoint and prevented the victim from responding to the police officer was sufficient to allow rational factfinder to find that defendant intended to substantially interfere with the victim's personal liberty. See State v. Garcia, supra, 288 Or. at 421, 605 P.2d 671.

Defendant's main challenge to the sufficiency of the evidence is on the issue of whether he committed an act proscribed by the statute. Defendant contends that because the victim was held in the bathroom of his own apartment he was not "secretly confine(d) * * * in a place where he (was) not likely to be found" as required under ORS 163.225(1)(b). While Oregon courts have had substantial opportunities to examine the asportation requirement of subsection (a), they have never considered the meaning of the language of subsection (b) at issue in this case. Legislative history reveals only that the Criminal Law Revision Commission considered the meaning of subsection (b) to be a question of fact for the jury. Minutes, June 17, 1969, Criminal Law Revision p. 6. Thus, this court's function on appeal is to determine whether there was sufficient evidence, viewed in the light...

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12 cases
  • State v. Parkins
    • United States
    • Oregon Supreme Court
    • 25 d4 Junho d4 2009
    ...would move for a judgment of acquittal, the state alerted the trial court to the Court of Appeals opinion in State v. Montgomery, 50 Or.App. 381, 386-87, 624 P.2d 151 (1981). In doing so, the state described Montgomery as "an important case with regard to the kidnapping charge," because t......
  • State v. Vaughan-France, A155485
    • United States
    • Oregon Court of Appeals
    • 29 d3 Junho d3 2016
    ...where the victim is actually—if accidentally—found.”Id .The facts in Parkins stand in some contrast to the facts in State v. Montgomery , 50 Or.App. 381, 624 P.2d 151, rev. den. , 290 Or. 727, 631 P.2d 340 (1981). In Montgomery, the defendant was assaulting the victim in the victim's apartm......
  • State v. Simmons
    • United States
    • Oregon Court of Appeals
    • 16 d3 Março d3 2011
    ...had not preserved that specific challenge. At the close of the state's case at trial, the state alerted the court to State v. Montgomery, 50 Or.App. 381, 386–87, 624 P.2d 151 (1981), and described that case as “ ‘an important case with regard to the kidnapping charge,’ because that opinion ......
  • State v. Litscher
    • United States
    • Oregon Court of Appeals
    • 17 d3 Maio d3 2017
    ...in Vaughan-France were sufficient to withstand a motion for judgment of acquittal, we compared them to the facts in State v. Montgomery , 50 Or.App. 381, 624 P.2d 151, rev. den. , 290 Or. 727, 631 P.2d 340 (1981), a pre- Parkins case in which we upheld another "secret confinement" kidnappin......
  • Request a trial to view additional results

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