State v. Alexander

Annotate this Case

State v. Alexander (2000-135); 173 Vt. 376; 795 A.2d 1248

[Filed 08-Feb-2002]

[Motion to Change Mandate Denied 28-Mar-2002]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 2000-135

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Addison Circuit

Raymond H. Alexander January Term, 2001

Dean B. Pineles, J.

William H. Sorrell, Attorney General, David Tartter, Assistant Attorney
General, Montpelier, and John Quinn, Addison County State's Attorney,
Middlebury, for Plaintiff-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney,
Montpelier, for Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

JOHNSON, J. Defendant appeals from a judgment of conviction, based
on a jury verdict, of attempted kidnapping. He contends: (1) the court
erroneously denied a request to instruct on the lesser-included offense of
unlawful restraint in the second degree; (2) the evidence was insufficient
to establish the element of intent; and (3) the evidence was insufficient
to establish the requisite element of restraint. We agree with
defendant's first claim of error, and accordingly, we reverse.

The record evidence disclosed the following. The complainant worked
at a manufacturing plant in Middlebury. On the date in question, she had
worked late to prepare for a business trip the

next day. Shortly after 6:00 p.m., as she was walking down a hallway
preparing to leave, she encountered defendant, who worked in the building
as a janitor. The complainant asked him if he would turn out the lights.
Defendant did not respond, but instead grabbed her wrist, said "you're
coming with me," and forcefully pulled her into a conference room. As she
struggled to free herself, defendant pushed her against a wall and pulled
out a knife.

The complainant warned him that the president of the company would be
returning momentarily, and offered him money. Defendant did not respond.
Instead he proceeded to pull her out of the conference room and into an
open manufacturing area, near the ladies' bathroom. He then attempted to
force the complainant into the bathroom. Although she resisted and
momentarily freed herself, defendant grabbed her again, put her in a
headlock, and started punching her in the head and stomach. The attack
left the complainant dazed, though she continued to struggle and eventually
broke free and ran for an exit, with defendant in close pursuit. The
complainant ran out a shipping door just ahead of defendant, although he
managed to tackle her by the ankles causing her to fall headlong down the
steps. Once outside, the complainant ran to another office and summoned
help. Defendant did not pursue her outside the building.

Defendant was initially charged with attempted sexual assault and
attempted kidnapping with intent to sexually assault or place the
complainant in fear of sexual assault. The information was later amended
to charge attempted aggravated sexual assault and attempted kidnapping with
intent to place the complainant in fear of being subjected to bodily
injury. At the close of the State's evidence, defendant moved for
judgment of acquittal. The court denied the motion as to the kidnapping
count but granted judgment of acquittal as to the attempted sexual
assault. The defense called no witnesses. At the charge conference,
defendant requested an instruction on the lesser-

included offense of unlawful restraint in the second degree. The court
denied the request because the court found that there was no dispute that
defendant brandished a knife and physically assaulted the victim.
Defendant renewed his objection to the court's failure to instruct on the
lesser offense at the end of the instructions. The jury found defendant
guilty as charged. This appeal followed.

Defendant contends the court erred in refusing to give a requested
instruction on the lesser-included offense of unlawful restraint in the
second degree. Defendant's argument is premised upon the meaning and
structure of the kidnapping statute, which provides, in pertinent part, as
follows:

(a) A person commits the crime of kidnapping if the person
(1) knowingly restrains another person with the intent to:
(A) hold the restrained person for ransom or reward; or
(B) use the restrained person as a shield or hostage; or
(C) inflict bodily injury upon the restrained person or place
the restrained person or a third person in fear that any person will be
subjected to bodily injury; or
(D) sexually assault the restrained person or place the restrained
person or a third person in fear that any person will be sexually
assaulted; or
(E) facilitate the commission of another crime or flight
thereafter

13 V.S.A. § 2405(a)(1). The amended information charged defendant with a
violation of § 2405(a)(1)(C) (intent to inflict bodily injury or place
person in fear of bodily injury).

Under the statute, in pertinent part, restrain "means to restrict
substantially the movement of another person without the person's consent
or other lawful authority," id. § 2404(3), and a restraint is without
consent if it is accomplished "by force, threat, or deception." Id. §
2404(4)(B). Kidnapping is punishable by a maximum sentence of life
imprisonment, although the sentence may be reduced upon a showing that
defendant voluntarily caused the release of the victim in a safe place
without having caused serious bodily injury. Id. § 2405(b).

In addition to kidnapping, the code also proscribes unlawful restraint
in the first degree,

which entails "knowingly restrain[ing] another person under circumstances
exposing that person to a risk of serious bodily injury," id. §
2407(a)(1), and is punishable by imprisonment for not more than fifteen
years, as well as unlawful restraint in the second degree, which consists,
inter alia, of "knowingly restrain[ing] another person," id. §
2406(a)(3), and is punishable by imprisonment for not more than five
years.

The code thus sets forth three distinct offenses involving an unlawful
restraint, with different levels of punishment corresponding to the
severity and circumstances of the offense. Defendant argues that although
the evidence may have been sufficient to show that he committed the lesser-
included offense of knowingly restraining the victim, in violation of §
2406 (unlawful restraint in the second degree), it was insufficient to
show that he restrained the victim with the intent to inflict bodily
injury or place the victim in fear of injury, as required for kidnapping.
Id. § 2405(a)(1)(C). Defendant's argument rests upon a construction of
the statute requiring, in effect, proof of dual intents, a knowing
restraint for the separate and additional purpose of inflicting bodily
injury. The State contests defendant's construction, asserting that the
statute is satisfied if the restraint itself evinces an intent to injure.
In order to address defendant's claim on the lesser included offense, we
must address the proper interpretation of the actual crime charged. We
conclude that defendant's interpretation is the more sound.

Enacted in 1989, Vermont's kidnapping, unlawful restraint
first-degree, and unlawful restraint second-degree statutes generally
parallel the Model Penal Code provisions for kidnapping, felonious
kidnapping, and false imprisonment. See Model Penal Code §§ 212.1, 212.2,
212.3 (1980). Under the Model Penal Code, kidnapping is defined - and
distinguished from felonious restraint and false imprisonment - by the
requirement that the restraint must be accomplished for one

of four purposes: to hold the victim for ransom or reward, or as a shield
or hostage; to facilitate the commission of a crime or flight thereafter;
to inflict bodily injury on or terrorize the victim; or to interfere with
the performance of any governmental or political function. See id. §
212.1. The Model Code commentary explains that the authors chose the
"usual way of differentiating from among offenses in this field [by]
specify[ing] nefarious purposes with which the actor must undertake
removal or confinement of his victim." Model Penal Code § 212.1 cmt. at
227. The Code commentary further underscores the authors' understanding
that injurious or threatening behavior used to effectuate a taking may
constitute felonious restraint, but will not amount to kidnapping unless
the restraint is intended to accomplish one or more of the specific
offenses set forth in the statute. As the authors explain:

Thus, for example, the actor who uses a gun to force another to
drive him somewhere engages in unlawful restraint under
circumstances exposing the victim to risk of serious bodily harm.
If he does so in order to terrorize the victim or in order to
commit or escape from a felony, he may be convicted of kidnapping
under Section 212.1. But if his purpose is merely to obtain
transportation, he is liable only for the lesser offense of
felonious restraint.

Id. § 212.2 cmt. at 240-41.

This is also the general view of those states with kidnapping statutes
similar to Vermont's. Kansas, for example, defines kidnapping as the
taking or confining of a person, accomplished by force, threat, or
deception, "with the intent" to inflict bodily injury or terrorize the
victim, among other specified offenses. Kan. Stat. Ann. 21-3420 (1995 &
2000 Supp.). The Kansas Supreme Court has held that the statute requires
a specific intent to commit one of the proscribed offenses independent of
the means used to accomplish the taking. "Our statute requires that the
taking or confinement be accomplished not only by the proscribed means
(i.e., 'by force, threat or deception')

but also with the specific intent to accomplish one of four types of
objectives." State v. Buggs, 547 P.2d 720, 730 (Kan. 1976); see also
State v. Scott, 827 P.2d 733, 742 (Kan. 1992) (affirming kidnapping
conviction on aiding and abetting theory where evidence supported inference
that, at time of abduction, defendant shared principals' intent to
inflict bodily injury or to terrorize).

Similarly, in Alabama kidnapping is defined as an abduction with the
intent, among other purposes, of inflicting physical injury. Ala. Code §
13A-6-43(a)(4) (1994 & 2001 Supp.). The court there has explained:
"Pursuant to the new kidnapping statute, the State must prove two intents:
The first deriving from the abduction element and the second from the
statutory subdivisions of § 13A-6-43(a)(1)-(6)." Guess v. State, 507 So. 2d 546, 548 (Ala. Crim. App. 1986), aff'd, 507 So. 2d 555 (Ala. 1987).
Thus, the court in Guess held that the State was compelled to prove that
the defendant had "restrained [the victim] with 'intent to prevent his
liberation' and with 'intent to . . . inflict physical injury upon him.' "
Id.

Other state interpretations are in accord. See, e.g., Alam v. State,
793 P.2d 1081, 1084 (Alaska Ct. App. 1990) (jury could convict defendant
of attempted kidnapping with intent to sexually assault where evidence
"would have permitted the jury to infer that [the defendant] wished to have
sexual relations with [the victim] and that he intended to force her into
his car so that he could drive her to another location to accomplish his
purpose"); State v. Dyson, 680 A.2d 1306, 1313 (Conn. 1996) (rejecting
claim that "intent to terrorize" element of kidnapping was "redundant and
merely restates an element that accompanies every kidnapping," observing
that it requires proof of "specific intent to terrorize [the] victim");
Sean v. State, 775 So. 2d 343, 344 (Fla. Dist. Ct. App. 2000) ("Kidnapping
differs from false imprisonment by requiring proof by the state of one of
four intent elements," including intent to inflict bodily harm); McClellan
v. Commonwealth, 715 S.W.2d 464,

469 (Ky. 1986) (in determining sufficiency of evidence of kidnapping with
intent to inflict bodily injury or terrorize victim, key issue was "not
whether appellant actually held [the victim] as a hostage or terrorized
her, but whether he intended to do so at the time he unlawfully restrained
her"); State v. Van Vleck, 805 S.W.2d 297, 299 (Mo. Ct. App. 1991)
(evidence was sufficient for jury to infer that defendant intended to
abduct victims "in order to inflict physical injury or terrorize them");
State v. Kyle, 430 S.E.2d 412, 421 (N.C. 1993) (whether crime consists of
kidnapping or lesser included offense of false imprisonment depends on
whether intent of confinement was to accomplish one of purposes enumerated
in kidnapping statute); State v. Raynor, 495 S.E.2d 176, 180 (N.C. Ct. App.
1998) (kidnapping conviction upheld where evidence showed that defendant
restrained victim for purpose of committing armed robbery and restraint
utilized was more than that inherently necessary for robbery); see also
People v. Miles, 245 N.E.2d 688, 695 (N.Y. 1969) ("[I]t is the rare
kidnapping that is an end in itself; almost invariably there is another
ultimate crime.").

Although we have not previously addressed the issue, we are persuaded
that our kidnapping statute should be interpreted consistently with
similar statutes in other states. See, e.g., State v. Davis, 165 Vt. 240,
246, 683 A.2d 1, 5 (1996) ("Under § 2405(a), the State must prove that
defendant knowingly restrained the victim with the intent to commit one of
several enumerated acts."). Having so concluded, we turn to defendant's
claim on appeal that he was entitled to an instruction on the lesser
included offense of unlawful restraint in the second degree.

We have consistently recognized that as "a general rule, a criminal
defendant is entitled to have the jury instructed on all lesser-included
offenses . . . if the facts in evidence reasonably support such an
instruction." State v. Delisle, 162 Vt. 293, 301, 648 A.2d 632, 637
(1994). A lesser-included offense instruction is appropriate "if the
elements of the lesser offense must necessarily be

included in the greater offense." State v. Bolio, 159 Vt. 250, 252, 617 A.2d 885, 886 (1992). It is well settled that false imprisonment, or its
Vermont equivalent, unlawful restraint in the second degree - consisting
of the knowing restraint of another person, see 13 V.S.A. § 2406(a)(3) - is
included within the proof needed to establish the elements of kidnapping or
attempted kidnapping, and therefore is a lesser-included offense of the
greater charge. See, e.g., State v. Carter, 652 P.2d 694, 696 (Kan. 1982)
(court erred in failing to instruct on lesser-included offense of unlawful
restraint where victim's testimony raised legitimate factual issue as to
whether defendant had capacity to form specific intent requisite for
kidnapping); Kyle, 430 S.E.2d at 421 (false imprisonment is
lesser-included offense of kidnapping); see generally Annotation., False
Imprisonment as Included Offense Within Charge of Kidnapping, 68 A.L.R.3d
828, 828 (1976 ) (courts generally hold that false imprisonment is
lesser-included offense of kidnapping). (FN1)

Instruction on a lesser included offense is an essential element of a
fair trial because it ensures that the defendant will benefit from proper
application of the reasonable doubt standard. As the United States
Supreme Court explained:

[I]f the prosecution has not established beyond a reasonable doubt
every element of the offense charged, and if no lesser offense
instruction is offered, the jury must, as a theoretical matter,
return a verdict of acquittal. But a defendant is entitled to a
lesser offense instruction - in this context or any other -
precisely because he should not be exposed to the substantial
risk that the jury's practice will diverge from theory. Where
one of the elements of the offense charged remains in doubt, but
the defendant is plainly guilty of some offense, the jury is
likely to resolve its doubts in favor of conviction.

Keeble v. United States, 412 U.S. 205, 212-213 (1973). The lesser included
offense instruction "provid[es] the jury with the 'third option' . . .
[and] ensures that the jury will accord the defendant

the full benefit of the reasonable-doubt standard." Beck v. Alabama, 447 U.S. 625, 634 (1980). In other words, a lesser included offense
instruction allows the jury to convict the defendant for criminal behavior
for which there is proof beyond a reasonable doubt, without convicting on a
greater offense for which proof beyond a reasonable doubt may be lacking.
In this manner, the lesser-included offense instruction forces the State
to meet its constitutional burden of proof for each element of the crime,
rather than allowing the State to present the jury with a binary choice of
guilty or not guilty.

The exception to the general rule is that a defendant may be denied an
instruction on a lesser included offense when the evidence does not
support the instruction. In State v. Wright, 154 Vt. 512, 581 A.2d 720
(1989), the victim was murdered while working at a convenience store from
which over $2000 was missing. The defendant was charged with first degree
felony murder. Although the defendant received a jury instruction on the
lesser included offense of second degree murder, he ascribed error to that
instruction on appeal. We held that any error in the instruction was
harmless because defendant was not entitled to a lesser-included offense
instruction. 154 Vt. at 517, 581 A.2d at 724. The facts in evidence
overwhelmingly established that the murder was committed in the course of
a robbery. "In short, the record supports a verdict that defendant was
either guilty of felony murder or not guilty of any homicide, but does not
support a verdict of a lesser degree of homicide." Id. at 519, 581 A.2d
at 725. Similarly, in State v. Mercado, 166 Vt. 632, 699 A.2d 50 (1997),
the defendant was charged with delivery of heroin and requested an
instruction on possession of heroin, the lesser included offense. The
only evidence in that case, however, was the testimony of an informant who
bought two bags of heroin from the defendant. We held that an instruction
on possession was improper because there was no evidence that defendant
only possessed the heroin

but did not deliver it. Id. at 632, 699 A.2d at 50. Given the evidence,
delivery was the only logical conclusion. "If defendant didn't hand the
bags of heroin over to the confidential informant, there's absolutely no
evidence that he possessed them. And if he did hand them over to the
informant, then he delivered them." Id. at 632-33, 699 A.2d at 50.
Additionally, in State v. Scribner, 170 Vt. 537, 746 A.2d 145 (1999)
(mem.), the defendant requested an instruction of attempted voluntary
manslaughter as a lesser-included offense of attempted first degree murder.
There, the victim asked the defendant why he was harassing some girls
playing in a yard. In response, the defendant shot the victim. The
defendant was convicted of the lesser included offense of attempted second
degree murder. We found that the defendant was not entitled to an
instruction on attempted voluntary manslaughter because "voluntary
manslaughter requires adequate provocation, considered objectively, for
the loss of self-control. [The victim's] conduct cannot be characterized
as adequate provocation for defendant to shoot at him." Id. at 540, 746 A.2d at 148.

None of the exceptions to our general rule apply in this case. This
trial hinged on the issue of defendant's intentions once he had restrained
the victim. As we discussed above, kidnapping is a double intent crime.
That is, the prosecution must prove that defendant both knowingly
restrained the victim and intended to inflict bodily injury (or other
statutory enhancement) to prove the greater crime of kidnapping. See
supra at 7. That defendant knowingly restrained the victim was undisputed
at trial. The evidence showed that defendant initially pulled the victim
into a conference room and then tried to drag her into a secluded
bathroom. There was, however, considerable disagreement as to what
defendant intended to do with the restraint. (FN2) The State relied on the
same

facts to prove the kidnapping as to prove the restraint. Although, the
jury was entitled to infer both the intent to restrain and the intent to
do serious bodily injury from the same facts, defendant's second intent
was not a foregone conclusion. The resolution of the issue was the
important difference between two crimes - unlawful restraint and
kidnapping. Under these circumstances, it was error not to follow our
general rule that lesser-included offenses must be charged when raised by
the evidence.

In denying the instruction, the trial court exposed defendant
precisely to the risk described in Keeble, 412 U.S. at 212-213. The trial
court took the facts presented at trial and made the finding that
defendant must have committed kidnapping as charged. Indeed, the trial
court's rationale that "the jury would . . . acquit[] defendant if it
found that the State had not sustained its burden of proof on all of the
elements [including intent]," is deeply flawed because it "would
effectively negate the right to jury instructions on a lesser-included
offense in every case." Bolio, 159 Vt. at 254, 617 A.2d at 887 . It was
error for the court to displace the jury by assuming that the unlawful
restraint must have been intended to inflict bodily injury on the victim,
based on the uncontroverted aspects of the case - that defendant
brandished a knife and physically assaulted the victim - that proved, at a
minimum, the unlawful restraint. In so assuming, the court negated the
potential alternative argument that defendant committed the unlawful
restraint with some intent other than to inflict bodily injury, or with no
intent at all. Denying the lesser-included offense instruction deprived
the

jury of a meaningful opportunity to consider alternative theories of the
case and convict or acquit accordingly, and prejudiced defendant.

Defendant raises two additional claims that we must address because if
meritorious they would result in outright dismissal of the charges against
him. First, defendant claims that the evidence here was insufficient to
sustain the intent element of the charge. In reviewing the trial court's
denial of defendant's motion for acquittal, we view the evidence in the
light most favorable to the state, excluding modifying evidence, and
determine whether the evidence sufficiently and fairly supports a finding
of guilt beyond a reasonable doubt. See State v. Grega, 168 Vt. 363, 380,
721 A.2d 445, 457 (1998). The element of intent, we have observed, "is
rarely proved by direct evidence; it must be inferred from a person's acts
and proved by circumstantial evidence." State v. Cole, 150 Vt. 453,
456554 A.2d 253, 255 (1988); accord State v. Fanger, 164 Vt. 48, 53, 665 A.2d 36, 38 (1995).

The record evidence here established that defendant initially accosted
the victim in a hallway of the office building where they worked.
Defendant dragged her from there into a conference room, where he pushed
her against a wall and threatened her with a knife. The victim told
defendant that the president of the company would return at any moment,
and offered him the cash that she was carrying in an envelope if he would
let her go. Defendant made no response, and instead proceeded to drag
the victim out of the conference room and into a large, open manufacturing
area. From there, he attempted to pull her into a nearby bathroom. The
victim resisted and briefly freed herself. Defendant restrained her
again, put her in a headlock, and punched her repeatedly in the face and
stomach. Although battered, she was eventually able to break free and run
outside the building for help.

Viewed in the light most favorable to the State, the jury could
reasonably have concluded that defendant utilized more force than was
necessary simply to effectuate the restraint, and that the kidnapping was
for the specific purpose of inflicting bodily injury or fear of injury. As
discussed above, there are several explanations for defendant's behavior,
including that he never completed the initial restraint. Based on the
evidence, however, a jury could have determined that defendant had the
intent not only to restrain the victim, but by continually removing her to
more isolated regions within the building, had the additional intent to
commit further acts without detection. See State v. Royal, 670 P.2d 1337,
1343 (Kan. 1983) (where evidence showed that victim was dragged at
knifepoint into car, jury using "common sense . . . reasonably could have
inferred that the defendant's intent was to rape or otherwise molest the
victim; that is obviously the most plausible explanation for his
behavior"); Van Vleck, 805 S.W.2d at 299 (where defendant demanded that
victim get in car, but did not announce his intentions in advance,
circumstantial evidence nevertheless supported inference that defendant
intended to confine victims for purpose of terrorizing them). Accordingly,
we conclude that the evidence was sufficient to prove the intent element
of the attempted kidnapping charge.

Finally, defendant contends the evidence was insufficient to establish
the element of restraint under the kidnapping statute because the victim
was not confined for a "substantial" period nor moved a "substantial"
distance. 13 V.S.A. § 2404(3)(B), (C). This claim is unpersuasive. The
victim here was moved from room to room within her place of work a distance
of approximately 100 feet, over a period lasting approximately fifteen to
twenty minutes. We have upheld kidnapping convictions under circumstances
where a confinement lasted approximately thirty minutes, and the movement
covered about one block. See State v. Washington, 166 Vt. 600, 601, 691 A.2d 583, 584 (1997); see also State v. Lang, 164 Vt. 598, 599, 664 A.2d 267, 268 (1995) (mem.) (upholding

kidnapping conviction where actual confinement of victim by defendant
lasted fifteen minutes). Both Washington and Lang relied, in turn, on
State v. La France, 569 A.2d 1308, 1312-13 (N.J. 1990), which held that a
thirty-minute confinement was sufficiently substantial to support a
kidnapping conviction. As explained in La France, the issue turns on a
"qualitative" - rather than a quantitative - judgment as to whether the
detention or asportation was "inherent" in the underlying separate
offense, and whether it "increase[d] the risk of harm" to the victim. Id.
at 1310; see also People v. Martinez, 973 P.2d 512, 519-20 (Cal. 1999)
(substantial movement judged by whether it increased risk of harm,
diminished likelihood of discovery, enhanced opportunity to commit
additional offenses, and was incidental or not to other crime); State v.
Morrison, 980 S.W.2d 332, 334 (Mo. Ct. App. 1998) (confinement for period
of "minutes" was substantial where it increased risk of harm to victim);
State v. Wagner, 528 N.W.2d 85, 87-88 (Wis. Ct. App. 1995) (kidnapping
conviction upheld where defendant moved victim from laundromat area "that
was open to public view into the bathroom - an area that was hidden from
the public").

Here, as noted, the facts supported a finding that defendant moved the
victim to increasingly isolated parts of the building to accomplish the
restraint, whatever its ultimate purpose may have been. Accordingly, we
conclude that the evidence amply supported the requisite finding of
restraint under the kidnapping statute.

Reversed.

FOR THE COURT:

_______________________________________
Associate Justice

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Footnotes

FN1. The State does not contest the proposition that unlawful restraint in
the second degree is a lesser-included offense of kidnapping.

FN2. The dissent claims that this disagreement was manifested only in
defense counsel's closing argument. The issue of defendant's intent,
however, was raised throughout the trial on both direct and
cross-examination of the prosecution's witnesses as revealed by a thorough
reading of the transcript. For instance, the prosecution asked the victim
what she thought defendant intended by his actions. The victim also
admitted that defendant paused when he was offered money. Defense counsel
cross-examined the victim about the time duration that defendant
brandished his knife, and whether defendant attempted sexual contact with
her. These examples indicate that the purpose of defendant's action was a
central feature of the trial raised directly and indirectly and thus the
issue was for the jury to decide.

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Concurring and Dissenting

No. 2000-135

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Addison Circuit

Raymond H. Alexander January Term, 2001

Dean B. Pineles, J.

William H. Sorrell, Attorney General, David Tartter, Assistant Attorney
General, Montpelier, and John Quinn, Addison County State's Attorney,
Middlebury, for Plaintiff-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney,
Montpelier, for Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

AMESTOY, C.J., concurring and dissenting. I concur in the
majority's holding that the evidence amply supports the judgment of
conviction of kidnapping with intent to inflict bodily injury. I cannot
agree with its further conclusion that, notwithstanding the evidence of
guilt, the judgment must be reversed because the trial court refused
defendant's request to instruct on the lesser-included offense of unlawful
restraint in the second degree. The evidence in this case overwhelmingly
proved that defendant restrained and abducted the victim with the specific
intent to perpetrate further violence. No reasonable view of the evidence
would support a theory that he merely restrained the victim without the
additional intent to injure. Hence, the trial court's decision was fully
justified, and provides no basis to disturb the judgment. Accordingly, I
respectfully dissent.

As the majority observes, a defendant is entitled to a lesser-included
offense instruction where the evidence is reasonably susceptible of
sustaining such an instruction. See State v. Bolio,

159 Vt. 250, 254, 617 A.2d 885, 887 (1992); State v. Delisle, 162 Vt. 293,
306, 648 A.2d 632, 637 (1994). Here the record reveals that defendant
accosted the victim in a hallway of the office building where they worked,
pulled her into a conference room, threatened her with a knife, dragged her
into an open manufacturing area, and then attempted to pull her into a
bathroom. When the victim resisted and briefly freed herself, he
restrained her again, put her in a headlock, and punched her in the face
and stomach.

The evidence thus decisively demonstrates that defendant was not
content merely to restrain the victim, but instead endeavored continually
to remove her to more isolated regions within the building to commit
further acts of violence where there was less risk of detection or
interruption. Testimony by the investigating officers and the emergency
room physician where the victim was treated provide further proof that the
force applied exceeded that which was necessary to merely restrain, and
evinced an unmistakable intent to injure.

The evidence, which was largely uncontroverted, thus established that
defendant engaged in a series of increasingly violent batteries upon the
victim which ended only with her harrowing and unlikely escape. The
inference that defendant restrained the victim with the specific intent to
inflict injury was thus inescapable; there was no rational basis in the
record for the jury to infer that defendant's intent was merely to
restrain. If believed, in other words, the evidence provided no
reasonable ground to convict defendant of the lesser offense of unlawful
restraint and acquit of the greater offense of kidnapping. In these
circumstances, courts have uniformly held that an instruction on the
lesser-included offense of unlawful restraint is unwarranted. See, e.g.,
State v. Kyle, 430 S.E.2d 412, 421 (N.C. 1993) (defendant not entitled to
instruction on lesser included offense of false imprisonment where there
was no evidence that defendant confined victim for purpose other than that
charged); Romero v. State, 34 S.W.3d 323, 325 (Tex. Crim. App. 2000) (court
properly refused to instruct on lesser-included offense of unlawful
restraint where there was no evidence that would allow rational jury to
convict of lesser offense).

The majority correctly observes that there was "disagreement" at trial
as to defendant's intent. Supra, at 10. That disagreement was based on
defense counsel's assertion in closing argument that defendant may have
acted "irrationally" with no underlying intent whatsoever. Argument is not
evidence, however, and the record evidence demonstrated overwhelmingly that
defendant restrained and abducted the victim with the intent to injure.
The facts are thus not unlike those in State v. Surrett, 427 S.E.2d 124,
125-26 (N.C. Ct. App. 1993), where the victim testified that defendant
grabbed her while she was loading groceries into her car, threw her into
his car while she struggled to break free, and drove a short distance
before she managed to escape through an open window. The victim testified
that she was "scared to death," and a passerby heard her screams. The
defendant, who did not testify, was convicted of kidnapping with intent to
terrorize.

Rejecting the defendant's claim that the trial court erred in refusing
to instruct on the lesser-included offense of false imprisonment, the
court explained:

Where the State presents evidence of every element of the offense
charged and there is no evidence negating these elements other
than the defendant's denial that he committed the offense, then
no lesser included offense need be submitted. . . . Therefore it
is not error to fail to instruct on false imprisonment if there
is no evidence tending to show that the victim was kidnapped for
some purpose other than terrorizing, or for no purpose.

Id. at 128. Here, similarly, defendant cites no record evidence tending to
show that the victim was kidnapped for some purpose other than the obvious
one of inflicting injury, and counsel's argument that defendant's actions
might have been bereft of any rational purpose was insufficient to warrant
a lesser-included instruction. The trial court, therefore, correctly
refused to instruct on unlawful restraint in the second degree.
Accordingly, I would affirm the judgment.

I am authorized to state that Justice Morse joins in this concurring
and dissenting opinion.

_______________________________________
Chief Justice

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