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What does today's kidnapping opinion have to do with ID Theft?

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by: Ryan • March 13, 2013 • one comment

Assume the following facts. Jack kidnaps Jill and takes her from Point A to Point B, where he assaults her. After assaulting her, he takes her from Point B to Point C. He's charged with two kidnappings (AB and BC). Do the counts merge?

You might be thinking, no, of course not. Because the assault constituted a "sufficient pause" between kidnappings, you know that even if two identical crimes arise from the same criminal episode, they don't merge as long as there is a pause during which a defendant would have time to reflect and reconsider.

That would be a good answer, and it would show an understanding of merger law that's better than average. It would also be wrong.

And the reason it's wrong is that the kidnapping lasts from the time Jill is taken at point A until she is released. It doesn't matter that the movement stopped for a period of time. It's one kidnapping, according to State v. Gerlach.

The court found that kidnapping is a continuing rather than a discrete crime, and it continues -- even after all the elements are met -- as long as the defendant deprives the victim of her liberty.

Kidnapping is analogized to theft of property, when the property is retained for a long period of time. The crime isn't over until the stolen goods are no longer in the defendant's possession.

How does this compare to ID Theft? Assume your client has been charged with using one credit card (not her own) at 10 different stores over the weekend. Assume 10 counts of ID Theft. As long as the state has included the language "possessed [the identification] with the intent to defraud", that's one long criminal episode and therefore only one conviction would be left standing for the same reasons articulated in Gerlach. See also State v. Cantrell (continuous possession of one gun over a week equals one criminal episode.)