STATE OF NEW JERSEY v. EDWARD ALVAREZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5005-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD ALVAREZ,

Defendant-Appellant.

__________________________________

May 22, 2014

 

Argued January 13, 2014 Decided

 

Before Judges Ashrafi and Leone.

 

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment No.

10-01-0056.

 

W. Scott Murphy argued the cause for

appellant (Murphy Peluso, L.L.C., attorneys;

Merrill Rubin, on the brief).

 

Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor,

argued the cause for respondent (Grace H.

Park, Acting Union County Prosecutor,

attorney; Ms. Liebman, of counsel and on

the brief).

PER CURIAM

Defendant Edward Alvarez appeals from his conviction by a jury for kidnapping, criminal restraint, and terroristic threats. The charges were brought after defendant forcibly held a woman he had been dating for two hours in her own home. In the course of discussing their relationship and their breakup, he threatened to kill her and himself. Defendant left the home and released the victim without causing any physical injury or attempting to do so.

The primary issue on this appeal is whether testimony about the victim's emotional state after the incident was sufficient evidence of harm to support defendant's conviction for first-degree kidnapping. We hold it was not. We reverse the jury's verdict in part and direct that defendant be resentenced for second-degree kidnapping.

I.

The evidence at the August 2010 trial was presented through the testimony of the victim and defendant and three other fact witnesses. Defendant was forty-three years old and the victim was in her thirties. She was divorced and had a son, who was not at her home on the night of the incident.

Defendant and the victim had begun dating in February 2009, and the romantic relationship quickly became serious. They were seeing each other frequently during the spring of 2009, and went together on a vacation to Mexico. In July 2009, they traveled to her native country, Colombia, and stayed with the victim's extended family. But in Colombia, the relationship began to sour when defendant spoke to the victim's father and asked for his approval for defendant to marry the victim. He had not told the victim he intended to do so. The father announced to the family that defendant intended to marry the victim and expressed his happiness at the prospect. The victim was not ready for marriage and was surprised and upset by that turn of events.

In addition, while in Colombia, defendant displayed behavior that led the victim to believe he was inappropriately jealous and possessive of her. When they returned to New Jersey at the end of July, the victim told defendant about her displeasure and said she needed "space and time." She then stopped responding to his phone calls and text messages.

Defendant was puzzled and distressed about the sudden change in the relationship. He sent flowers to her place of employment roses in increasing numbers three days in a row. She did not respond. He went to the parking lot where she worked and left cards and letters on her car. Again, she did not respond. On one occasion when she left her job and was driving to her boss's residence, she saw his car following her. She made a u-turn and confronted him, telling him she would call the police if it happened again.

On a Saturday night, August 15, 2009, the victim spent the night with friends at a restaurant. Defendant went to her condominium, rang the bell, and then waited for her to come home. He sat on her patio for some four hours waiting. During his wait, he smoked a cigar. The victim returned at 2:30 a.m. with a girlfriend, and the girlfriend got into her own car and drove away. As the victim went to her door, defendant came up from behind and startled her. At the trial, the two gave differing versions of what happened next.

According to the victim, defendant had a knife in his hand and ordered her to open the door of her condo and to turn off the alarm. He held the knife to her side and followed her in. She testified on direct examination that she did not see the knife clearly and could not describe it. On cross-examination, she said it was a folding pocket knife. Once inside the condo, defendant took her purse, cell phone, and keys and put them aside. He made her sit on a couch while he sat very near her and questioned her about their relationship, still holding the knife.

She testified that she asked defendant why he had a knife in his hand. Defendant said he had come to kill her and to kill himself. He said if he could not have her then no one would. According to the victim, he also said he had not been able to work for the past two weeks, and that he had looked for a gun to kill them both but could not find one.

The victim testified that defendant kept her on the couch for two hours, all the time holding the knife. When she criticized his jealous behavior, he became angry. Out of fear, she changed her tactic and falsely agreed that she had been wrong and that they could resume their relationship. She urged him to go home and they would talk the next day. She allowed him to hug and kiss her just to defuse the danger. Eventually, he got up to leave, but he was concerned that she would call the police. She assured him she would not, and he left her condo at about 4:30 a.m.

After defendant left, the victim hid in a closet in fear that he would come back. She called two of her girlfriends and told them what had happened. One of the friends urged her to call the police immediately, and she did. The victim testified that she was in "shock . . . in a panic . . . scared."1

The girlfriend who had advised her to call the police testified that she arrived at the victim's condo about ten minutes after getting the phone call. The victim was "shaking," on the floor holding both her knees, and she was "screaming," "crying," and "hysterical." The girlfriend also testified that when the police arrived and the victim was telling them what happened, she became so upset that she could not continue and went into the bathroom and started to vomit.

The responding police officer did not mention vomiting in his testimony. He described the victim as "visibly upset," "visibly shaken," "crying hysterically." The victim went to the police station and provided information. From the police station, she went to her girlfriend's house, where she stayed for three days. There was no other testimony or evidence about the effects of the incident on the victim.

At the close of the State's case in chief, the trial court denied defendant's motion to dismiss the kidnapping charge.

Defendant's version of what occurred that night was different. He testified he went to the victim's home because he needed to talk to her face-to-face to bring closure to their relationship. He did not understand what he had done wrong that resulted in such a sudden change. They had talked about marriage just a few weeks earlier. He did not think her request for "space and time" meant a permanent end to the relationship but rather that she needed a few days, which he had given her.

Defendant denied ever having a knife that night or threatening to kill her or himself. He testified he had not owned a pocket knife or any other kind of similar knife since the 9/11 terrorist attacks and the limitations that were placed on air travel at that time. He said he had smoked a cigar on the patio that night, and he had a cigar cutter, which does not have an exposed blade. He believed the cigar cutter was actually left in his car that night, and what he had in his hand when he entered the victim's condo was the cigar and a cigar case. He denied threatening the victim with a knife or otherwise, and he denied having said he had looked for a gun to kill them both.

Defendant testified he left the victim at about 4:30 a.m., went home and slept for about an hour, and then went to Brooklyn to visit his elderly aunt that Sunday morning. While in Brooklyn, he texted the victim because she said they would talk that day. When she did not respond to his text, his aunt tried to call her, but the victim did not answer the phone. Police officers came to his aunt's home and arrested him. No knife was recovered because he did not have one.

The indictment on which defendant was tried contained five charges: (count one) first-degree kidnapping, N.J.S.A. 2C:13-1(b); (count two) third-degree terroristic threats, N.J.S.A. 2C:12-3(b); (count three) fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d); (count four) third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d); and (count five) third-degree criminal restraint, N.J.S.A. 2C:13-2. The jury found defendant not guilty of the two counts charging possession of a knife but guilty of kidnapping, terroristic threats, and criminal restraint. The jury specified in its verdict that defendant had knowingly harmed the victim, thus making the kidnapping charge a first-degree offense.

At defendant's sentencing on December 3, 2010, the trial judge referenced the many favorable letters that the judge had received attesting to defendant's good character. But he also noted that defendant had one conviction on his record dating back twenty-two years to 1988, and that conviction involved similar offenses committed against a woman with a gun. The court found that aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a), applied to the sentence and that no mitigating factors, N.J.S.A. 2C:44-1(b), applied. The judge sentenced defendant to twenty years in prison on the conviction for first-degree kidnapping, subject to the provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2, which means that defendant must serve seventeen years before he can be paroled and that he will be subject to five years of special parole supervision upon his release from prison. The court also sentenced defendant to concurrent terms of four years imprisonment on each of the other two counts of conviction.

II.

On appeal, defendant argues:

POINT I

THERE WAS INSUFFICIENT EVIDENCE OF HARM TO SUPPORT A CONVICTION FOR FIRST DEGREE KIDNAPPING.

 

POINT II

THE COURT ERRED IN FAILING TO INSTRUCT THE JURY WITH RESPECT TO LESSER-INCLUDED OFFENSES (Not Raised Below).

 

POINT III

THE COURT FAILED TO PROPERLY CHARGE THE JURY AS TO FIRST AND SECOND DEGREE KIDNAPPING (Not Raised Below).

 

POINT IV

THE COURT ERRED IN FAILING TO MERGE THE CRIMINAL RESTRAINT AND KIDNAPPING CHARGES FOR SENTENCING PURPOSES (Not Raised Below).

 

The State concedes Point IV, that the criminal restraint conviction should have merged with the kidnapping conviction for sentencing. We also find merit in defendant's Points I and III and reverse his conviction on first-degree kidnapping and modify that conviction to second-degree. As to Point II, although a lesser-included disorderly persons offense of false imprisonment, N.J.S.A. 2C:13-3, might have been appropriate had such a jury instruction been requested at trial, it was not plain error for the court not to have given that charge.

A.

When evaluating the sufficiency of evidence for conviction on a criminal charge, we consider

whether viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

 

[State v. Kittrell, 145 N.J. 112, 130 (1996) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)).]

"This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts." Ibid. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979)). We must credit the jury's finding of any "'inference from a fact whenever it is more probable than not that the inference is true; the veracity of each inference need not be established beyond a reasonable doubt in order for the jury to draw the inference.'" Id. at 131 (quoting State v. Brown, 80 N.J. 587, 592 (1979)).

The State, however, has the burden of establishing every element of the offense beyond a reasonable doubt. State v. Federico, 103 N.J. 169, 174 (1986).

The subsection of the kidnapping statute on which defendant was convicted, N.J.S.A. 2C:13-1(b)(2), provides in relevant part: "[a] person is guilty of kidnapping if he unlawfully . . . confines another for a substantial period, with . . . the . . . purpose[] . . . [t]o inflict bodily injury on or to terrorize the victim." Kidnapping is a crime of the first degree, except that it is a crime of the second degree if the kidnapper "releases the victim unharmed and in a safe place prior to apprehension." N.J.S.A. 2C:13-1(c); see State v. Jackson, 211 N.J. 394, 414 n.3 (2012) ("Although kidnapping is a first-degree crime punishable by fifteen to thirty years' incarceration, it is treated as a second-degree crime, punishable by five to ten years' incarceration, if the defendant 'releases the victim unharmed and in a safe place prior to apprehension.'" (quoting N.J.S.A. 2C:13-1(c))).

The released-unharmed provision of New Jersey's kidnapping statute was derived from a provision of the Model Penal Code that differentiates the punishment between those kidnappings where the victim is killed or never found and those where the kidnapper releases the victim alive and in a safe place. See Model Penal Code 212.1, quoted in State v. Sherman, 367 N.J. Super. 324, 344 (App. Div.), certif. denied, 180 N.J. 356 (2004), overruled on other grounds, State v. Dalziel, 182 N.J. 494, 504 (2005). The intent of the Model Penal Code was to give the kidnapper an incentive to release the victim safely. Sherman, supra, 367 N.J. Super. at 344.

In New Jersey, the Commission that proposed our Criminal Code suggested a modified version of the Model Penal Code to provide for more severe first-degree penalties unless the victim was released unharmed in a safe place, not just if the victim was released alive. Ibid. In Sherman, we stated that the Commission and our Legislature placed more importance on harsh penalties for most kidnapping offenses than on creating an incentive to release the victim alive before apprehension. Id. at 345 (citing State v. Masino, 94 N.J. 436, 446 (1983)). Perhaps the reason for the modification was to provide the same incentive for the kidnapper not to harm the victim at all.

Because the released-unharmed provision is a material element of first-degree kidnapping, the State must prove beyond a reasonable doubt either that the defendant did not release the victim in a safe place or that the defendant caused harm to the victim before releasing her in a safe place. Federico, supra, 103 N.J. at 174-76; Sherman, supra, 367 N.J. Super. at 330-31, 340.

In this case, there is no dispute that defendant released the victim in a safe place before he was apprehended. He released her in her own home. There is also no dispute that he did not cause her any physical injury. Although the victim testified that she felt fear, panic, and shock because defendant held a knife and threatened her life, there was no suggestion that defendant inflicted or attempted to inflict any physical injury upon her.

The State alleged, however, that defendant did not release the victim unharmed because of the emotional harm she suffered. Defendant argues the evidence did not prove the type and degree of emotional and psychological harm that would satisfy the requirements of N.J.S.A. 2C:13-1(c) for first-degree kidnapping. The State responds on both procedural and substantive grounds, contending that defendant did not raise this precise issue before the trial court. We find insufficient merit in the State's procedural arguments to warrant discussion in a written opinion, R. 2:11-3(e)(2), except to state that defendant did move for dismissal of the kidnapping charge after the State rested its case in chief. We will consider the parties' arguments on their substantive merits.

In Sherman, supra, 367 N.J. Super. at 330, we held that "the concept of 'harm' as embodied by the released unharmed provision of N.J.S.A. 2C:13-1, includes emotional or psychological harm suffered by the victim." We held that the State had to prove beyond a reasonable doubt that the defendant "knowingly" caused physical, emotional, or psychological harm to the victim.2 Id. at 355-56.

We also noted in Sherman a difference between emotional and psychological harm sufficient to satisfy the statute and "the type of harm inherent in every kidnapping." Id. at 330. We agree with defendant that the evidence in this case did not make such a distinction with respect to the level and degree of emotional harm suffered by the victim.

The evidence was that the victim was visibly shaking, crying, and hysterical. Her girlfriend also testified that the victim was on the floor holding her knees and that she began to vomit in the bathroom, although neither the victim nor the officer testified similarly. The State argues the evidence of the victim's reaction to the incident was sufficient for the jury to conclude that the victim was harmed before defendant released her.

We are persuaded, however, by defendant's argument that if such testimony about a victim's immediate reaction to a kidnapping is sufficient to meet the harm element of the statute, then virtually no kidnapping will be a second-degree kidnapping. The reaction of the victim in this case was typical of the fear and distress a victim would be expected to feel after a kidnapping. The released-unharmed provision of the statute would be meaningless as an additional element of proof if the State need only prove that the victim reacted emotionally, as a victim would be expected to react. See id. at 346 (citing People v. Schoenfeld, 168 Cal. Rptr. 762, 772 (Cal. Ct. App. 1980)).

Unlike Sherman, the State in this case did not present evidence to prove substantial or enduring emotional or psychological harm to the victim. In Sherman, the defendant pleaded guilty to first-degree kidnapping but reserved his right to appeal the sufficiency of evidence supporting that charge and certain legal rulings of the trial court. Id. at 329-30. The defendant had not caused any physical injury to the six-year-old girl he kidnapped for ransom. By all accounts, he had treated her well as he held her for twenty-two hours in his parents' house before he relented on his plan and released her in a safe, public place. Id. at 332-33. But the State had evidence that the child suffered post-traumatic stress disorder after her release. Id. at 329. A psychologist who had treated the child for more than six months provided a report that the child had developed severe anxiety and had recurring nightmares. Id. at 334. The child expressed a fear of being captured again and displayed symptoms of withdrawal. The child's condition was "significant and long-lasting." Ibid. We concluded this evidence supported the harm element of the statute. Id. at 347.3 In this case, the testimony did not address any symptoms or diagnosis of the victim similar to the State's proffer of evidence in Sherman. The allegation that the victim had been harmed emotionally by the incident at her condo was not proven at the trial by any medical or professional evidence, or by any fact evidence showing substantial or enduring emotional harm. The State presented only lay descriptions of the victim's reaction to the kidnapping on the night that it happened. That testimony did not support a reasonable inference that the kidnapping had an effect upon her beyond that to be expected from every such kidnapping. As we have said, such a reaction is not sufficient to constitute "harm" within the meaning of the statute that elevates the crime to first-degree severity. The statute as drafted must leave room for a finding of second-degree kidnapping when the defendant has released the victim in a safe place without having caused her any physical injury or any proven emotional or psychological harm.

We also agree with defendant that the trial court's instructions to the jury on the statutory elements did not adequately apprise the jury of the pertinent issue of harm. They permitted the jury to convict defendant of first-degree kidnapping on the basis of emotional harm that is inherent in most kidnappings.

The court instructed the jury in accordance with the model criminal jury charge. See Model Jury Charge (Criminal), "Kidnapping" (2010).4 The court instructed that the jury should find defendant guilty of first-degree kidnapping if

the State has proven beyond a reasonable doubt that the defendant committed the crime of kidnapping[, and] the State has also proven beyond a reasonable doubt that he knowing[ly] caused harm to [the victim]. The harm component can include physical, emotional, or psychological harm.

 

There was no further elucidation of the meaning of harm. After briefly summarizing each side's contentions regarding what occurred on the night of the incident, the court concluded this part of its instructions as follows:

If you find that the State has proven beyond a reasonable doubt that the defendant is guilty of kidnapping, but you have a reasonable doubt as to whether the State has proven beyond a reasonable doubt that he knowingly harmed [the victim], then you should find the defendant guilty of kidnapping in the second-degree.

 

The verdict sheet included a separate question pertaining to whether the State had proven harm to the victim, and the jury answered that it had.

The jury was not instructed specifically about the statute's released-unharmed provision. It was not informed of a distinction between emotional or psychological harm that is inherent in and can be expected in a kidnapping case and harm that goes beyond that level and satisfies the elements of a first-degree offense.

Defense counsel did not request such an instruction or object to the instruction that the court gave, and so, the plain error standard of review applies to the absence of such an instruction. See State v. Morton, 155 N.J. 383, 421 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); R. 2:10-2. Nevertheless, where the issue was crucial to the jury's deliberations on the kidnapping charge, the court had an independent duty to present full and accurate legal instructions for the jury to make the appropriate findings. State v. Grunow, 102 N.J. 133, 148 (1986). If there is sufficient evidence for the jury to consider emotional or psychological harm as the sole means of determining whether the kidnapping is a first-degree crime, the court must focus the jury on the nature and level of emotional or psychological harm proven by the State. It must instruct the jury that that emotional or psychological harm that is inherent in the crime itself does not satisfy the requirements of first-degree kidnapping.

"A court's obligation properly to instruct and to guide a jury includes the duty to clarify statutory language that prescribes the elements of a crime when clarification is essential to ensure that the jury will fully understand and actually find those elements in determining the defendant's guilt." State v. Alexander, 136 N.J. 563, 571 (1994). When "the language of the statute will not give sufficient guidance to the jury," State v. Olivio, 123 N.J. 550, 567 (1991), the court must instruct the jury on the legal meaning and construction of pertinent terms. "[S]tatutes containing words whose meanings are ordinary and understandable often require a judicial determination with respect to their intended scope of application." Alexander, supra, 136 N.J. at 573 (citing State v. Thomas, 132 N.J. 247, 254 (1993)).5

Here, the word "harm" is ordinary and understandable, but it needed judicial determination of its scope and meaning in the context of the released-unharmed provision of the kidnapping statute. Where it was conceded that the victim was not physically injured and no evidence was presented of enduring emotional or psychological harm, we cannot assume the jury made the requisite distinction between harm that is inherent in the crime of kidnapping and a greater harm.

In sum, we conclude that the jury instruction was not adequately specific on the question of harm, and that the evidence presented at defendant's trial was not sufficient for the jury to find him guilty of causing harm to the victim before releasing her in a safe place. Defendant could not be convicted of first-degree kidnapping on the evidence presented at his trial. Because our holding does not affect the other elements of the crime of kidnapping, the verdict can stand as modified to second-degree kidnapping.

B.

Defendant also argues his conviction for kidnapping should be reversed and he should be granted a new trial because the court failed to instruct the jury on lesser-included offenses, namely, third-degree criminal restraint, N.J.S.A. 2C:13-2(a), and disorderly persons false imprisonment, N.J.S.A. 2C:13-3. At the charge conference, the court stated that criminal restraint was a lesser-included offense of kidnapping but it was already charged as the fifth count of the indictment. The court concluded there was no need to reference it as a lesser-included offense of the kidnapping count, since the court would instruct the jury on count five. The court then agreed with the prosecutor's suggestion that the instructions and the verdict sheet should re-order the counts so that the jury was instructed on the elements of criminal restraint immediately after the instructions on the elements of kidnapping.

Defense counsel raised no objection to the court's proposed jury charge, and also did not request that another lesser-included instruction be given for false imprisonment. Therefore, defendant must show plain error in the jury charge that was given. See State v. Bunch, 180 N.J. 534, 541 (2004); State v. Savage, 172 N.J. 374, 387 (2002).

In State v. Cassady, 198 N.J. 165, 178 (2009), the Court stated: "N.J.S.A. 2C:1-8(e) commands that '[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.'" (alteration in original). The Court described a "two-prong test" for determining whether a lesser-included offense instruction should be given to the jury:

"whether an included offense charge is appropriate requires (1) that the requested charge satisfy the definition of an included offense set forth in N.J.S.A. 2C:1-8(d), and (2) that there be a rational basis in the evidence to support a charge on that included offense." Ibid. (quoting State v. Thomas, 187 N.J. 119, 131 (2006)). The court must consider "whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." State v. Brent, 137 N.J. 107, 117 (1994); accord State v. Purnell, 126 N.J. 518, 531 (1992).

In Brent, supra, the Court said: "The criminal-restraint statute 'provides intermediate penalties between those for kidnapping and false imprisonment . . . . [I]n view of the fact that the victim is not isolated, in danger of death, nor necessarily terrorized, classification of this offense as a crime of the third degree seems adequately severe.'" 137 N.J. at 121 (alteration in original) (quoting 2 Final Report of the New Jersey Criminal Law Revision Commission, 2C:13-2 commentary (1971)). Here, the jury was given the opportunity to find defendant not guilty of kidnapping but guilty of criminal restraint. It found him guilty of both. There was no error regarding a lesser-included offense of criminal restraint.

Defendant also contends that the trial court was obligated to give a lesser-included offense instruction for the disorderly persons offense of false imprisonment. "An unrequested charge on a lesser included offense must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." Savage, supra, 172 N.J. at 397 (quoting State v. Choice, 98 N.J. 295, 298 (1985)).

A person may be convicted of false imprisonment "if he knowingly restrains another unlawfully so as to interfere with his liberty." N.J.S.A. 2C:13-3. False imprisonment may be a lesser-included offense to kidnapping or criminal restraint when there is little "evidence that causing . . . injury was [defendant's] intent." See State v. Bragg, 295 N.J. Super. 459, 469-70 (App. Div. 1996). "The difference between false imprisonment and third-degree criminal restraint is that the latter requires that the restraint be 'in circumstances exposing the other to risk of serious bodily injury.'" Savage, supra, 172 N.J. at 400-01 (quoting N.J.S.A. 2C:13-2(a)).

As in Savage, we do not find plain error in the trial court's failure to charge the lesser-included offense of false imprisonment without a request from defense counsel. Ibid. All the evidence at trial pointed to a belief by the victim that she must stay in her condo seated at the couch at the risk of serious injury if she attempted to escape or call for help. While it would have been appropriate for the court to have granted a request for a lesser-included charge of false imprisonment, the court was not required to scour the statutes and determine on its own that such a charge must be given. We conclude the absence of that lesser-included charge was not plain error. See Cassady, supra, 198 N.J. at 178; Brent, supra, 137 N.J. 117-18.

 

III.

Defendant's conviction for first-degree kidnapping is reversed and modified to conviction for second-degree kidnapping. The convictions for criminal restraint and terroristic threats are affirmed. The criminal restraint conviction shall merge with the conviction for kidnapping. We remand for resentencing of defendant.

Affirmed in part, reversed in part and remanded. We do not retain jurisdiction.

 

 

 

1 Defense counsel cross-examined the victim using her testimony at a domestic violence hearing for a restraining order that was conducted about one month after the incident. Apparently, the victim did not testify at that time that she hid in a closet after defendant left but that she sat on the couch and thought about what she should do, and then she called her friends.

2 Several other states have also modified the Model Penal Code from a released-alive provision to a released-unharmed one. Our research has not disclosed any other jurisdiction that places the burden on the prosecution to prove as an element of the first-degree offense that the victim was harmed before release, as held in Federico and Sherman. Some states apply a comparable released-unharmed statutory provision as an affirmative defense, with no obligation on the part of the prosecution to prove it as an element of the offense. See, e.g., State v. Sanders, 750 N.E.2d 90, 117 (Ohio 2001), cert. denied, 535 U.S. 1036, 122 S. Ct. 1795, 152 L. Ed. 2d 653 (2002); State v. Kinney, 762 A.2d 833, 845 (Vt. 2000). Other states apply harsher penalties if the prosecution proves the victim suffered "bodily harm" or "bodily injury" in the course of the kidnapping, see, e.g., People v. Isitt, 127 Cal. Rptr. 279, 282 (Cal. Ct. App. 1976); Green v. State, 389 S.E.2d 358, 360 (Ga. Ct. App. 1989), thus distinguishing physical injury from emotional or psychological harm. The issue before us in this appeal does not arise in many cases because kidnapping charges frequently coincide with other violent crimes committed against the victim before the victim was released. See, e.g., Mayer v. People, 180 P.2d 1017, 1017-18 (Colo. 1947) (attempted rape).

3 Nevertheless, we vacated the defendant's conviction for first-degree kidnapping in Sherman on the ground that the trial court had erred as a matter of law in ruling that defendant was not entitled to a jury instruction to the effect that the prosecution must prove the defendant "knowingly" harmed the child. Id. at 352. In accordance with the plea agreement under which the defendant had been convicted, we remanded to allow him to plead guilty to second-degree kidnapping. Id. at 355-56.

4 The model charge was modified in 2012, after defendant's trial, but not with respect to the issue we address in this opinion.

5 We are aware that the model jury charge on kidnapping, even as revised in 2012, does not alert trial judges of the need to address the nature of emotional or psychological harm that proves first-degree kidnapping when there is no physical injury involved. See Model Jury Charge (Criminal), "Kidnapping" (2012).