Argued and Submitted: September 27, 2013.
[Copyrighted Material Omitted]
090431605. Multnomah County Circuit Court. Karin Johana Immergut, Judge.
Mary M. Reese, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Timothy A. Sylwester, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[266 Or.App. 135] NAKAMOTO, J.
Defendant appeals from a judgment of conviction on one count each of first-degree rape, ORS 163.375(1); first-degree kidnapping, ORS 163.235(2); and first-degree burglary, ORS 164.225(2). In the first two of five assignments of error, he argues that the trial court erred when it concluded that his prosecution and trial were both timely commenced. Defendant asserts in his third assignment of error that the court erroneously denied his motion for judgment of acquittal on the kidnapping charge because there was insufficient evidence to prove the required elements. For the reasons below, we affirm. We reject without discussion defendant's final two assignments of error, pertaining to his sentencing.
I. ASPORTATION ELEMENT OF KIDNAPPING
We begin with defendant's assignment of error regarding the trial court's denial of his motion for judgment of acquittal (MJOA) on the kidnapping charge. In reviewing the denial of an MJOA, we state 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. Opitz, 256 Or.App. 521, 523, 301 P.3d 946 (2013).
In October 2005, defendant was selling magazine subscriptions door-to-door in the Sellwood neighborhood of Portland. At approximately 5:00 p.m. on October 20, 2005, the victim was at home alone when a neighbor, accompanied by defendant, knocked on the door to her apartment. The neighbor, who spoke little English, explained to the victim that he could not understand what defendant was trying to sell, and asked for the victim's help. After the victim, who also spoke very little English, was unable to help, defendant and the neighbor left.
Defendant subsequently returned, knocked on the door, and when the victim answered, forced his way in, locking the door behind him. The victim screamed. Defendant punched her in the face and stomach. He then dragged the [266 Or.App. 136] victim away from the front door, which was surrounded by windows and in close proximity to neighboring units. Defendant dragged the victim up the stairs inside the apartment, continuing to beat her. Defendant tried to force the victim into a bathroom near the top of the stairs. Fearing that defendant would kill her once inside the bathroom, the victim resisted, and defendant ultimately shoved her to the ground outside the bathroom. Defendant began to rape the victim there. When the victim would not stop screaming, defendant shoved a plastic glove into her mouth. Defendant continued assaulting and raping the victim for some time. He eventually left, after threatening to kill the victim if she called the police.
Defendant was ultimately charged with, inter alia, kidnapping in the first degree, ORS 163.235. Under ORS 163.235, first-degree kidnapping is defined as an aggravation of kidnapping in the second degree. Second-degree kidnapping is defined by ORS 163.225, which 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."
Defendant was charged, specifically, under the asportation theory of kidnapping, ORS 163.225(1)(a).
Defendant waived a jury trial, and the case was tried before the court. After the close of the state's evidence, defendant moved for judgment of acquittal on the kidnapping charge, arguing that there was insufficient evidence to permit a rational factfinder to
find beyond a reasonable doubt that he took the victim " from one place to another" as required under ORS 163.225(1)(a). According to defendant, the location at the top of the stairs where he raped the victim was not a different " place" --as that term has been interpreted by Oregon's appellate courts in the kidnapping-asportation context--from the location, inside the same dwelling, near the front door where the assault began. [266 Or.App. 137] Defendant also argued that his movement of the victim to the second story was incidental to the independent crime of rape because " it was all in furtherance of and all the consequence of the rape."
The state countered that relevant case law supports a conclusion that movement of several feet, even within the same dwelling, may constitute a taking " from one place to another" where, as here, the initial and final locations are sufficiently, qualitatively distinct. Under the state's view, furthermore, defendant's movement of the victim from the front door to the landing at the top of the stairs was not merely incidental to the rape, because " it wasn't necessary for the defendant to move his victim to the second story to effectuate the rape."
The trial court agreed with the state. The court reasoned:
" After reviewing both the testimony and the photographs of the apartment in this case, I do find that the defendant's dragging the victim upstairs and raping her on the upper level of the apartment was movement to a qualitatively different location and that the movement was not merely incidental to the rape in this case.
" The photographs submitted in evidence * * * show that the front door where the defendant first forced his way into the apartment was surrounded by windows and appears to be in close proximity to the neighbors' homes. One can reasonably infer that by dragging the victim up to the second floor the defendant was looking for a qualitatively different location within the residence that would offer enhanced privacy and concealment. The location of the rape was not simply approximately eight feet away from the entry point of the house, but it was up a fairly steep set of stairs. The fact that the defendant tried to force the victim into the bathroom further demonstrates that defendant's intent was to find a qualitatively different location in which to confine the victim and rape the victim.
" * * * *
" The decision to drag the victim up the stairs and seek seclusion from a front area of the residence where the defendant initially forced his way in, there's a different find[ing]. [266 Or.App. 138] It was intended to conceal the event from possible passersby outside and possibly the window, which was right near the front door, so I do not feel that it was incidental but rather it ...