State v. Opitz

• Citation: 256 Or.App. 521,301 P.3d 946
• Decision Date: 15 May 2013
• Docket Number: A146084.,09C48141
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Marvin OPITZ, Defendant–Appellant.
• Court: Court of Appeals of Oregon

256 Or.App. 521
301 P.3d 946

STATE of Oregon, Plaintiff–Respondent,
v.
Marvin OPITZ, Defendant–Appellant.

09C48141; A146084.

Court of Appeals of Oregon.

Submitted Aug. 29, 2012.
Decided May 15, 2013.

[301 P.3d 947]

Peter Gartlan, Chief Defender, and Ryan T. O'Connor, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Jeremy C. Rice, Assistant Attorney General, filed the brief for respondent.

Before ORTEGA, Presiding Judge, and HASELTON, Chief Judge, and SERCOMBE, Judge.

HASELTON, C.J.

[256 Or.App. 523]Defendant appeals, challenging, inter alia, his conviction for first-degree kidnapping, ORS 163.235, assigning error to the trial court's denial of his motion for judgment of acquittal (MJOA) and entry of conviction on that charge.¹ Defendant contends that the state did not adduce sufficient evidence to allow the trial court to find either of the conjunctive, requisite elements of ORS 163.225 beyond a reasonable doubt. For the reasons amplified below, we conclude that the evidence was insufficient for a reasonable trier of fact to find that defendant moved the victim “from one place to another.” ORS 163.225(1)(a). Accordingly, the trial court erred in denying the MJOA. We reverse defendant's conviction for first-degree kidnapping, remand for resentencing, and otherwise affirm.²

In reviewing the denial of an MJOA, we view the facts in the light most favorable to the state to determine whether a rational trier of fact could find each element of the charged offense beyond a reasonable doubt. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994).

Stated consistently with that standard, the facts material to the kidnapping charge are as follows. Defendant and the victim met in early 2008, and, in the spring of 2008, [256 Or.App. 524]they became romantically involved. Shortly thereafter, defendant moved into the victim's one-bedroom apartment in Woodburn, where he intermittently resided until the summer of 2009. That apartment consisted of a living room, a combined kitchen and dining area, one bathroom, and a hallway leading to a bedroom.

In October 2008, before the events leading to this case, defendant was convicted of fourth-degree assault constituting domestic violence for his conduct related to the victim. In the summer of 2009, defendant spent three months in jail. During that period, the victim obtained a restraining order against him. In early September 2009, shortly after defendant was released, he and the victim resumed their relationship, and the victim

[301 P.3d 948]

allowed defendant to stay at her apartment. At about 9:00 p.m. on the evening of September 10, 2009, defendant came to the apartment. Although the victim thought that defendant “seemed agitated,” she allowed him into the apartment.

Shortly after defendant arrived, and as defendant and the victim were in the living room, defendant “worked himself up” about the fact that he had spent time in jail, for which he blamed the victim. Defendant's agitation escalated, and he began slapping and punching the victim as she lay on the couch. He then threw her onto the floor, dragged her to the kitchen by her arm, and threw her against a wall and a bookshelf while “bitching about [the victim] putting him in jail.” At that point, the victim was bleeding. Defendant pulled her by her hair into the bathroom and threw her headfirst into the shower; consequently, the victim's face smashed into a metal bar in the shower, fracturing the orbital bone around her left eye. Defendant turned cold water onto the victim to rinse off the blood.

Defendant then took the victim to the living room, where she lay on the floor. At that point, defendant had obtained a syringe. Defendant placed his knee on the victim's chest and began stabbing her in the arm, neck, and face with the syringe while telling her that he was injecting her with air and that “[t]he air will kill you, you'll be dead in a few minutes.” Defendant then moved the victim to the [256 Or.App. 525]bedroom, threw her onto the bed, would not let her get up, and continued hitting her until both defendant and the victim eventually fell asleep on the bed at approximately 3:00 a.m. on September 11.

During the night of September 10 to 11, the victim told defendant that she needed medical attention because she felt that “something [was] wrong because there [was] squishy stuff going on in [her] stomach.” She asked defendant to leave her apartment and told him that, if he would leave, she would not tell anyone that he had injured her. However, for the next two days, defendant refused to leave the apartment; he would not allow the victim to get close to the door or windows or leave to seek medical attention for her injuries. The victim did not attempt to escape because she was so badly injured that she did not believe that she could physically outrun or outmaneuver defendant and she was afraid that, if she tried to escape, defendant would “hurt [her] some more.”

At some point after the assault, defendant instructed the victim to write a note to her adult daughter, falsely stating that she had gone to the coast with defendant and his son.³ The victim complied, but she wrote the note in sloppy handwriting (her handwriting was usually “clear and smooth”) and signed the note “Mom” (she usually signed her first name), because she wanted to signal to her daughter that something was wrong. Defendant placed the note on the apartment door, while remaining in the apartment with the victim.

On the third day, September 12, the victim's daughter found the note. Suspicious that something was wrong, the daughter requested that the police perform a welfare check. When the police arrived at the victim's apartment, defendant had fled after telling the victim that he would kill her if she answered the door or went outside before her wounds had healed. The police took the victim to the hospital, where she received medical treatment for her substantial injuries.

[256 Or.App. 526]Defendant was subsequently apprehended and charged with attempted murder, ORS 163.115; ORS 161.405 (Count 1); first-degree kidnapping, ORS 163.235 (Count 2); second-degree assault constituting domestic violence, ORS 163.175 (Count 3); first-degree burglary, ORS 164.225 (Count 4); and fourth-degree assault constituting domestic violence, ORS 163.160 (Count 5). As pertinent to our consideration of the first-degree kidnapping charge, the state alleged in the amended indictment that “defendant, on or about September 10, 2009, in Marion County, Oregon, did unlawfully and knowingly, without consent or legal authority, take [the victim]

[301 P.3d 949]

from one place to another, with intent to interfere substantially with [the victim's] personal liberty, and with the purpose of causing physical injury to [the victim].”

Defendant waived jury trial, and the case was tried to the court. After the close of the state's evidence, defendant made an MJOA on, inter alia, the first-degree kidnapping charge. Defendant argued:

“I think there are perhaps two different analyses that can be made as to that. As it relates to the events on the night of September 10th, early morning hours of September 11th, and testimony that he moved her from one room to another room, we would simply submit to the court that the facts testified to do not rise to a level where the court could find that he intended to substantially interfere with her personal liberty.”

Defendant also argued that the victim's testimony that defendant had prevented her from approaching the door or windows in her apartment related only to events that had occurred after the assault and that “in order for it to be kidnapping in the first degree, the interference with personal liberty had to be for the purpose of causing physical injury to [the victim],” and, because there was no evidence that defendant intended to further physically harm the victim, the evidence that he intended to keep the victim away from the door and windows was not sufficient to satisfy the intent requirement for first-degree kidnapping.

The state responded:

[256 Or.App. 527]“[D]efendant dragg[ed] her * * * to the bathroom, but also to the kitchen and then to the bedroom. * * * [S]he was dragged by her hair on all those occasions, against her will.

“Now, whether it's a substantial distance is not important. * * *

“Here, the fact that the defendant is taking her into the bathroom against her will-he not only takes her in there because he needs to clean the blood up so he won't get caught. He throws her down into the tub, causing more injury. He then drags her out to the living room, drags her to the kitchen, continues to assault her then. So he's assaulted her in the bathroom by dragging her, assaulting her back out in the living room with needles, and continued punching and kicking all over her body. And then it's not done, [he dragged] her by the hair to the bedroom. So the asportation element is clear. He is substantially interfering with her personal liberty.”

The state additionally argued that defendant's movement of the victim was “not incidental to the assault.” The state explicitly disclaimed any reliance on confinement as an alternative means of proving the act element. SeeORS 163.225(1)(b) (“A person commits the crime of kidnapping in the second degree if, with intent to interfere substantially with another's personal liberty, and without consent or legal authority, the person * * * [s]ecretly confines the person in a place where the person is not likely to be found.”). Nonetheless, relying on State v. Mejia, 348 Or. 1, 227 P.3d 1139 (2010), the state contended that the “two days of confinement” demonstrated defendant's intent to substantially interfere with the victim's liberty. See Mejia, 348 Or. at 12, 227 P.3d 1139 (concluding that, in the situation and context of that case, the evidence of the defendant's moving and restraining...