State v. Sierra

• Decision Date: 30 December 2010
• Docket Number: (TC 05C40355; CA A136120; SC S057794).
• Citation: 349 Or. 506,254 P.3d 149
• Parties: STATE of Oregon, Respondent on Review,v.Joaquin SIERRA, Petitioner on Review.
• Court: Oregon Supreme Court

349 Or. 506

254 P.3d 149

STATE of Oregon, Respondent on Review,

v.Joaquin SIERRA, Petitioner on Review.

(TC 05C40355; CA A136120; SC S057794).

Supreme Court of Oregon, En Banc.

Argued and Submitted Nov. 8, 2010.Decided Dec. 30, 2010.

On review from the Court of Appeals.^*David Ferry, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief was Peter Gartlan, Chief Defender.Michael A. Casper, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.DURHAM, J.

This is a criminal case in which defendant challenges the sufficiency of the evidence to support his two convictions for the offense of kidnapping in the second degree, ORS 163.225, and his single conviction for the offense of kidnapping in the first degree, ORS 163.235.¹ The Court of Appeals affirmed defendant's convictions. State v. Sierra, 228 Or.App. 149, 206 P.3d 1153 (2009). We allowed defendant's petition for review and now affirm his conviction for first-degree kidnapping but reverse his two convictions for second-degree kidnapping.

Because defendant challenges the trial court's denial of his motion for judgment of acquittal, we state the facts underlying defendant's conviction in the light most favorable to the state. See State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994) (stating that rule).² On the evening of January 14, 2005, defendant stopped at a truck stop to rest. The truck stop included a fast-food restaurant and an adjoining convenience store. The convenience store had front and rear entrances. A “diesel desk” with a cash register (for transactions involving diesel fuel) was located at the rear of the store, and behind the diesel desk was a door to the manager's office. Ordinarily, a cashier would stand behind the diesel desk to accept payments from customers; in doing so, the cashier would face the store's front entrance. The dimensions of the area behind the diesel desk were seven and one-half feet by eight feet. In order to access that area from the store's rear entrance, a person ordinarily would walk around the front of the diesel desk and up a short ramp to a raised platform behind the diesel desk.

Derrick, an employee at the convenience store, received a complaint from a customer that a man had an open container of alcohol in the men's restroom and had been making inappropriate sexual comments. Derrick reported the complaint to the shift manager, who directed Derrick to take care of the problem. Derrick entered the men's restroom and saw defendant, who was rinsing his face, as well as an open bottle of beer nearby. Derrick informed defendant that alcohol was not allowed in the restroom, described the complaint that he had received, and told defendant that he should leave. Defendant became angry and confrontational, but Derrick was able to back him out of the restroom without a physical altercation. At that point, defendant left the store area through the rear entrance. Derrick, the shift manager, and another employee remained outside the rear entrance.

Defendant returned to his truck, where he thought about the confrontation. After a few minutes, he decided to return to the store in order to scare Derrick and secure an apology. He grabbed a loaded crossbow and extra bolts ( i.e., ammunition for the crossbow) from his truck, and walked back to the store. When the shift manager and the other employee saw defendant approach with the crossbow, they ran into the store and locked themselves inside the manager's office. Derrick remained outside. Defendant grabbed Derrick's arm, pointed the crossbow at Derrick's head, and took him inside the convenience store.

Defendant directed Derrick through the rear entrance, around the front of the diesel desk, up the ramp, and made Derrick kneel in the middle of the area behind the diesel desk. Defendant stood in that area, a little to the front of Derrick, in a position that would permit him to monitor the front and rear entrances. Defendant yelled insults at Derrick. He told Derrick that the accusations— i.e., Derrick's relation of the customer's complaint—had hurt him. He threatened to hurt Derrick and his children, and asked Derrick how he would feel if defendant hurt Derrick's daughter in the same way that Derrick had hurt him. At some point, he kicked Derrick in the face, causing a bloody nose.

Jeter and Mintun, two off-duty employees of a youth correctional facility, had stopped at the truck stop to eat at the adjoining restaurant. They heard a commotion and went into the convenience store to see if they could assist. Jeter testified that he had encountered defendant in the men's restroom earlier in the evening and that defendant had been “pretty good” with him, but that, when Jeter entered the convenience store, defendant was “upset” and “out of control.” Mintun attempted to divert defendant's attention so that Jeter would be able to restrain him. Defendant yelled at Jeter and Mintun to leave. When they refused, defendant pointed the crossbow at them. He directed them to come around the front of the diesel desk and up the ramp to the area behind the diesel desk, and then ordered them to kneel next to Derrick. He then paced back and forth while yelling and pointing his crossbow at all three individuals.

Three sheriff's deputies and an Oregon State Police sergeant arrived at the scene. After some of the officers peeked through the store's windows and saw defendant behind the diesel desk pointing the crossbow at the victims, the officers decided to enter the store to end the situation. When the officers entered, announced their presence, and ordered defendant to drop his weapon, defendant turned towards them and pointed the crossbow in their direction. One of the officers shot defendant.

An 11–count indictment charged defendant with seven counts of unlawful use of a weapon, one count of fourth-degree assault (of Derrick), one count of first-degree kidnapping (of Derrick), and two counts of second-degree kidnapping (of Jeter and Mintun). Each of the kidnapping counts alleged that defendant “did unlawfully and knowingly, without consent or legal authority, take [the victim] from one place to another, with intent to interfere substantially with the [victim's] personal liberty.” The first-degree kidnapping charge, which pertained to Derrick, alleged, in addition, that defendant acted “with the purpose of terrorizing * * * Derrick.”

The case proceeded to a jury trial. At the close of the state's case, defendant moved for a judgment of acquittal on the kidnapping charges. As to the first-degree kidnapping charge, defendant argued that the evidence was insufficient to show that he had acted with the purpose of “terrorizing” Derrick. As to the second-degree kidnapping charges, defendant argued that the state had not introduced sufficient evidence to prove that he had moved Jeter and Mintun “from one place to another” or that he had intended to “interfere substantially with [their] liberty.” The trial court denied the motions for judgment of acquittal, and the jury convicted defendant of all three kidnapping charges.³ On defendant's appeal, the Court of Appeals affirmed in a written opinion. State v. Sierra, 228 Or.App. 149, 206 P.3d 1153 (2009). Defendant then petitioned for review, challenging the sufficiency of the evidence as to each of his three kidnapping convictions.

We begin by addressing the parties' arguments concerning defendant's second-degree kidnapping convictions for his actions taken against Jeter and Mintun. ORS 163.225(1), which defines the offense of kidnapping in the second degree, provides:

“(1) 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:

“(a) Takes the person from one place to another; or

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

ORS 163.225(1)(a) and (b) thus provide alternative ways for the state to prove the act element of kidnapping. As noted above, in this case, by alleging in the indictment that defendant did “take [the victims] from one place to another,” the state elected to proceed on the asportation theory under ORS 163.225(1)(a). Thus, to establish kidnapping here, the state had to prove that defendant (1) “without consent or legal authority,” (2) took the victims “from one place to another,” (3) “with intent to interfere substantially” with the victims' “personal liberty.” On review, defendant renews his argument that the state presented insufficient evidence as to the latter two elements. We first consider whether, viewed in the light most favorable to the state, the evidence was sufficient to prove the act element of kidnapping, namely, that defendant took Jeter and Mintun “from one place to another.”

The state and defendant offer competing understandings as to the meaning of the act element of kidnapping by asportation. Defendant proposes that that element is satisfied when a defendant takes the victim either a substantial distance or to a qualitatively different place. Defendant submits that, as a general rule, movement within a single structure (such as a home, building, or car), including room-to-room movement, will not be movement to a qualitatively different place in terms of interference with a victim's liberty. The state appears to share defendant's view that the beginning place and ending place must be qualitatively different, but argues that place-to-place movement requires only proof that “the defendant moved the victim to a place that served to limit the victim's freedom of movement and increased the victim's isolation.” The parties both acknowledge, as they must, that, in order to prove that defendant took a victim “from one...