A Book from the Library of Defense
Namespaces
Variants
Actions

Jury Instructions, Part II - Kidnapping

From OCDLA Library of Defense
Jump to: navigation, search

by: Ryan • December 1, 2010 • no comments

UPDATE: The new opinion on kidnapping, State v. Sierra, is very good for the defense. It will provide lots of useful language for crafting your jury instructions, particularly when you have a room-to-room movement that survives MJOA. (My favorite quote from the opinion is on room-to-room movements. You'll know it when you see it.)

In my last essay on this topic, I pointed out that there are significant gaps that the standard jury instructions do not cover. These gaps include undefined words or phrase that, in the absence of any definition, allow the jury decide what is or is not a crime, not merely whether your client committed it. For example, "change of residence" is not defined in the charge of "failure to register as a sex offender," and it's not always clear whether there's been a change of residence. A man gets his mail at his mom's house. His ODL lists his mom's address. His clothes and belongings are there. But he spends the night at his girlfriend's house 4 nights a week. Has he changed his residence? Neither DMV nor IRS would think so, but the state police and your local prosecutor probably would. The jury might too, as soon as they find out he's a convicted sex offender.

Another example is "kidnapping." Let me state my conclusion up front: no one, absolutely no one, should go to trial on a kidnapping charge without requesting special jury instructions to explain exactly what the elements of kidnapping are. And that includes bench trials.

A few years ago, the standard jury instruction for kidnapping in the second degree required that the state prove:

  1. The defendant took the victim from one place to another, and
  2. The defendant intended to substantially interfere with the victim's liberty.

Since that standard instruction was promulgated, there have been substantial changes in how the appellate courts have interpreted both the meaning of "take from one place to another" and "intent to substantially interfere with the victim's liberty."

"To take from one place to another" has always been problematic, since the word "place" is undefined. As the Oregon Supreme Court explained in State v. Murray, 340 Or 599, 136 P3d 10 (2006), neither the kidnapping statute nor the criminal code define the term "place," and the plain meaning of the word presents a "metaphysics problem." Ultimately, the court concluded that "place" is an "elastic" concept, and thus the parties in a criminal action may "argue either way the question whether [a particular victim] went from one place to another."

For example, does "place" mean where a person is standing (as in, "standing in one place") so that movement of six inches is sufficient asportation to satisfy that element of kidnapping? Does it mean the building a person is in? "Get me outta this place" is a common and easily understood expression that would mean the speaker wants to be moved from this location, e.g., from the building, not within it.)

Since Murray, there have been appellate efforts to define the phrase further, which I won't belabor here. (I recommend starting with the kidnapping chapter of the OCDLA Major Crimes and Defenses manual.) But almost any special jury instruction that seeks to define the phrase will benefit the defendant, because any definition will invariably exclude some possible interpretations of the phrase.

The phrase "intent to substantially interfere with the victim's liberty" has also undergone substantial adjustment. The Oregon Supreme Court has indicated that such intent does not exist when the offense is merely an incidental result of the commission of another crime. State v. Mejia, 348 Or 1, 7-8 (2010). Therefore, if the defendant orders the cashier to the ground during a robbery, that probably would not be kidnapping.

To date, every kidnapping case addressed by the COA and OSC has involved the denial of a motion for judgment of acquittal. In some of the appeals, the defendant wins. In some, he loses. After all, the standard of review for a denied motion for judgment of acquittal requires the appellate court to review the evidence in the light most favorable to the state. It doesn't take much to show that in any particular case, there was just enough evidence to get the case to the jury. It's just hard to win on appeal.

But whether those defendants have won or lost, the case law generally has resulted in a substantial narrowing of the two essential elements of kidnapping. And the impact on the standard jury instructions?

Zero. The state still has to prove the exact same elements.

This isn't really anyone's fault. It would be hard to pull together all the cases involving an interpretation of "taking the victim from one place to another" for a clear and unimpeachable definition in a way that would satisfy both the defense and prosecution members of the jury instruction committee.

And defense attorneys shouldn't really want a standard instruction anyway. Better to draft something according to the needs of your client. For example, if your client is accused of moving his girlfriend from the kitchen to the living room, draft an instruction that leans toward defining "place" as a building or a house. If the judge won't give you that instruction, despite your best efforts to conform the instruction to the language from the case law, then you'll have the best possible standard of review on appeal. On the other hand, if your client is accused of moving the victim 6 feet within one room, draft an instruction that defines "place" as the room itself, so that moving from one place to another at least requires going to a different room.

Regarding the intent element of the crime, if your client committed a misdemeanor assault, but it's the kidnapping charge you're really afraid of, submit an instruction like this:

"In order to find the defendant guilty of kidnapping, you must find that the defendant's movement of [victim] was for an unlawful purpose other than merely to aid in his assault of [victim]. If the only unlawful intent of the movement of [victim] from one place to another was to make it easier to assault her, you must acquit of the kidnapping charge."

It can never hurt to ask for such an instruction. If it's an accurate statement of the law, then denial of the instruction pretty much guarantees a reversal. And if you get the instruction? Great! Something to argue to the jury that will give you a real shot at acquittal.

Lastly, if you go bench, rather than jury, ask for the instruction anyway. Get the judge to commit to whether she is adopting that instruction as the law. If she says no, she isn't, then you can still get a reversal from the appellate courts, even if there is enough evidence to support a conviction (assuming, again, that your instruction is a correct statement of law.) If she says she is, then argue in closing accordingly. But get her to commit one way or another.