State v. Lang

State v. Lang  (93-058); 164 Vt 598; 664 A.2d 267

[Filed 28-Jun-1995]

                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 93-058

                              MAY TERM, 1995


Stat of Vermont                        }     APPEALED FROM:
                                       }
                                       }
     v.                                }     District Court of Vermont,
                                       }     Unit No. 2, Chittenden Circuit
                                       }
Travis Lang                            }     DOCKET NO. 1061/1062/63-3-92Cncr

                    In the above-entitled cause, the Clerk will enter:

          Defendant Travis Lang was convicted by jury of one count of
burglary in violation of 13 V.S.A.  1201, and two counts of kidnapping in
violation of 13 V.S.A.  2405.  On appeal, he claims that the State failed
to prove one of the kidnapping charges, and that the trial court erred by
sentencing him to a term of 20 years to life imprisonment on the second
kidnapping charge. We affirm.

          All three charges against defendant stem from an incident in
December 1991 when defendant and an accomplice burglarized the home of
Robert and Estelle Landry.  Mr. Landry, age 79, and in poor health, and Mrs.
Landry, age 87, were both present during the burglary. Mr. Landry's hands 
and feet were bound to his poster bed with duct tape, and although Mrs.
Landry was not physically restrained, she was verbally coerced to remain in
her bedroom.  The men sabotaged the couple's telephone, ransacked the house 
for approximately fifteen minutes, and then left.  Afterwards, Mrs. Landry
freed her husband, but because the telephone had been disabled she was not
able to solicit help until the next morning when the paper carrier arrived.


          Vermont's kidnapping statute provides that a person commits the 
crime if he "knowingly restrains another person with the intent to . . . 
facilitate the commission of another crime."  13 V.S.A.  2405(a)(1)(E).  
The term "restrain" means "to restrict substantially the movement of another 
person without the person's consent . . . by . . . confining the restrained 
person for a substantial period . . . ."  13 V.S.A.  2404(3)(C).  Defendant 
contends that the evidence failed to show that he "knowingly" restrained
Mrs. Landry because she was not physically bound, and that even if she is
considered to have been restrained, it was not for a "substantial period."

          We summarily reject defendant's contention that he did not 
"knowingly" restrain Mrs. Landry because he did not physically bind her.
Although determining defendant's knowledge is a subjective inquiry, the 
State need prove only that defendant intended "`to accomplish the precise 
act which the law prohibits.'"  State v. Audette, 149 Vt. 218, 220, 543 A.2d 1315, 1316 (1988) (quoting Black's Law Dictionary 727 (5th ed. 1979)) 
overruled on other grounds by State

 

v. Sargent, 156 Vt. 463, 465, 594 A.2d 401, 402 (1991).  Here, the statute
is clear that restraint means to restrict the movement of the victim by
confinement.  This restraint is without consent if by force, threat, or
deception. 13 V.S.A.  2404(4)(B).  Our review of the record reveals that
defendant knew of Mrs. Landry's frail condition, yet he nonetheless accosted 
her at night, in her own home, wearing a ski mask, demanded money of her,
and would not let her leave her bedroom.  This evidence was sufficient for
the jury to conclude that defendant intended and accomplished the
confinement of Mrs. Landry through threats and intimidation.

          Nor are we persuaded that the State failed to prove that Mrs.
Landry was confined for a "substantial period."  Mrs. Landry was confined to
her bedroom for at least 15 minutes, and was effectively confined to her
home for several hours until she was able to contact the person who
delivered the newspaper.  See Wofford v. State, 867 S.W.2d 181, 183 (Ark.
Ct. App. 1993) (where victim confined in such a way that escape is made
difficult or impossible, fact that restraint is of brief duration does not
negate kidnapping conviction);  State v. LaFrance, 569 A.2d 1308, 1312-13
(N.J. 1990) (thirty-minute confinement sufficient to support kidnapping
conviction).

          Defendant also argues that the trial court erred by sentencing
defendant to twenty years to life imprisonment for the kidnapping of Mr.
Landry.   Defendant relies upon a provision of the kidnapping statute, 13
V.S.A.  2405(b), which reduces the maximum penalty to 30 years if the
defendant voluntarily released the victim to a "safe place."  The reduction
is not applicable here even though, as defendant emphasizes, Mr. Landry was
left in his home.  First, defendant took no affirmative action to release
Mr. Landry; instead, when defendant left the Landry home, Mr. Landry
remained bound and his 87-year-old wife, a frail woman who had just
experienced a significant trauma, was left to untie him.   Second, the
couple's home cannot be deemed a "safe place."  The telephone had been 
disabled, which eliminated the couple's only effective means of 
communication.  Leaving two elderly people in a ransacked home in the middle
of winter without communication is not releasing them into a safe place.

          Affirmed.

                                   BY THE COURT:

                                   ________________________________________
                                   Frederic W. Allen, Chief Justice

                                   ________________________________________
                                   Ernest W. Gibson III, Associate Justice

                                   ________________________________________
                                   John A. Dooley, Associate Justice

                                   ________________________________________
                                   James L. Morse, Associate Justice

                                   ________________________________________
                                   Denise R. Johnson, Associate Justice
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