State v. Goodhue (2002-046); 175 Vt. 457; 833 A.2d 861
2003 VT. 85
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
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2003 VT. 85
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 3, Essex Circuit
Greg L. Goodhue April Term, 2003
Dennis R. Pearson, J.
Jane Woodruff, Executive Director, Department of State's Attorneys,
Montpelier, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Johnson and Skoglund, JJ., and Allen, C.J.
(Ret.), Specially Assigned
¶ 1. SKOGLUND, J. Defendant appeals from the district court's
judgment of conviction following a jury trial on charges of burglary,
attempted sexual assault and kidnapping. Defendant challenges the court's
denial of his motion for judgment of acquittal on the sexual assault and
kidnapping charges. We affirm the conviction for attempted sexual assault
and reverse the conviction for kidnapping.
¶ 2. Twelve-year-old Amanda and her friend, thirteen-year-old
Carolyn, were in the kitchen at Amanda's family home when a strange man
entered the kitchen through the back door and ordered Carolyn into the
adjoining bathroom. Amanda followed them in. The man threw Carolyn to the
bathroom floor and got on top of her. He tried to get his hand down
Carolyn's pants. Amanda began throwing objects at him. The man got off of
Carolyn and pushed Amanda into a counter. He then returned to Carolyn,
again pushed her to the floor and ripped her shirt in the process. He
unbuttoned and unzipped Carolyn's pants and tried to take them off. At
this point, a door slammed and the man quickly got off Carolyn and fled the
scene. Amanda testified that the event lasted from three to five minutes.
The girls went to a neighbor's house and reported what had happened. The
girls ultimately identified the man as defendant. He was charged with
kidnapping, attempted sexual assault, and burglary.
¶ 3. At the close of the State's case, defendant moved for judgment
of acquittal pursuant to V.R.Cr.P. 29 on the kidnapping and sexual assault
charges, arguing respectively that the evidence failed to prove that
Carolyn was restrained for a substantial period of time and that the
evidence failed to establish the attempted sexual assault as there was "no
commencement of the consummation." The court denied these motions.
Defendant was convicted on all three counts, and was sentenced to five to
ten years for attempted sexual assault, to be served concurrent with a
sentence of ten to fifteen years for kidnapping. He was sentenced to five
to ten years for burglary, to be served consecutive to his other sentences.
Defendant again raised motions for judgment of acquittal on the above
grounds in a post-verdict filing, which the court denied. This appeal
¶ 4. On appeal, the standard of review for the denial of a motion
for judgment of acquittal is "whether, taking the evidence in the light
most favorable to the State and excluding modifying evidence, the state has
produced evidence fairly and reasonably tending to show the defendant
guilty beyond a reasonable doubt." State v. Carrasquillo, 173 Vt. 557,
559, 795 A.2d 1141, 1145 (2002) (internal quotations omitted).
¶ 5. The State adduced sufficient evidence of an attempted sexual
assault to sustain the jury's verdict of guilty. Defendant was charged
with attempted sexual assault under 13 V.S.A. § 3252(a)(3) (defendant
engaged in a sexual act with another person who was under the age of 16 and
was not his spouse). Vermont's attempt statute, 13 V.S.A. § 9(a), reads:
"[a] person who attempts to commit an offense and does an act toward the
commission thereof, but by reason of being interrupted or prevented fails
in the execution of the same, shall be punished as herein provided . . . ."
In State v. Hurley, 79 Vt. 28, 64 A. 78 (1906), we described what was
necessary to constitute an attempt. "The act must be of such character as
to advance the conduct of the actor beyond the sphere of mere intent. It
must reach far enough towards the accomplishment of the desired result to
amount to the commencement of the consummation." Id. at 31, 64 A. at 78.
¶ 6. The evidence of the attack on Carolyn showed that defendant's
actions had advanced from "mere intent" to the "commencement of the
consummation" of a sexual assault. As the trial court wrote:
the acts already committed by Defendant were so far along the
continuum of translating intent into action that the contemplated
crime had taken on an air of inevitability, but for the sudden
slamming of the back door which startled Defendant and caused him
to cease and flee.
There was sufficient evidence presented to show, beyond a reasonable doubt,
that defendant was guilty of attempted sexual assault. Therefore, the
court correctly denied his motion for judgment of acquittal on that charge.
¶ 7. Defendant next argues that the trial court improperly refused
to grant a motion for acquittal on the kidnapping count. Defendant argues
that the evidence was insufficient to prove beyond a reasonable doubt that
the victim was restrained for a substantial period of time because the time
period was brief and because any confinement was related to the underlying
offense of attempted sexual assault. Resolution of this claim requires an
examination of the development of the law relating to kidnapping.
¶ 8. Kidnapping was traditionally defined as "the forcible abduction
or stealing away of a man, woman, or child, from their own country and
sending them into another." State v. Innis, 433 A.2d 646, 652 (R.I. 1981)
(quoting 4 Blackstone, Commentaries on the Laws of England *219 (2
Sharswood ed. 1860)). The idea that the victim must be carried beyond
certain established boundaries appeared in early statutory development of
the offense in this country. For example, prior to 1904, the crime of
kidnapping was defined in Vermont statutes as the carrying off or removal
of a person from this state. See 1894 V.S. § 4912; 1880 R.L. § 3865; 1862
G.S. 112, § 31; 1839 R.S. 94, § 24. In 1904, the crime of kidnapping was
broadened to include asportation into the state and detention or
Whoever, without legal authority, forcibly or secretly confines or
imprisons another person within this state against his will, or
forcibly carries or send such person out of this state, or
forcibly seizes and confines or inveigles or kidnaps another
person with intent either to cause him to be secretly confined or
imprisoned in this state against his will, or to cause him to be
sent out of this state against his will, or in any way held to
service against his will, shall be punished by imprisonment in the
state prison for a term not exceeding ten years, or by a fine of
not more than ten thousand dollars, or both.
1904, No. 149, § 1. Although the statute has been replaced, during the
eighty-six years that this statute was in place, only the penalties
¶ 9. Under early kidnapping statutes, many state and federal
courts followed what has been described as the traditional rule in American
jurisprudence, holding that any asportation, that is, carrying away of the
victim, no matter how short in distance or duration, was sufficient to
establish the crime of kidnapping. A leading case espousing this point of
view is People v. Chessman, 238 P.2d 1001 (Cal. 1951). In Chessman, the
victim was moved only twenty-two feet before undergoing a sexual assault by
the defendant. The California Supreme Court upheld the defendant's
kidnapping conviction and stated, "[i]t is the fact, not the distance, of
forcible removal which constitutes kidnapping in this state." Id. at 1017.
Likewise in People v. Florio, 92 N.E.2d 881, 882-83 (N.Y. 1950), the New
York Court of Appeals expressed its view that under the applicable statute,
any confinement or movement constituted a kidnapping even if such movement
was undertaken only to facilitate another crime. See also Virgin Islands
v. Berry, 604 F.2d 221, 225 (3d Cir. 1979) (acknowledging, but ultimately
rejecting this view); State v. Jacobs, 380 P.2d 998, 1002 (Ariz. 1963);
Bailey v. State, 247 S.E.2d 588, 590-91 (Ga. 1978); Wilson v. State, 255 N.E.2d 817, 818-19 (Ind. 1970); Harris v. State, 254 N.W.2d 291, 296-97
¶ 10. Today however, a majority of courts have moved away from the
traditional approach and now hold that kidnapping statutes do not apply to
unlawful confinements or movements incidental to the commission of other
felonies. State v. LaFrance 569 A.2d 1308, 1309-12 (N.J. 1990); State v.
Innis, 433 A.2d at 654; see also F. Wozniak, Seizure or Detention for
Purpose of Committing Rape, Robbery, or other Offense as Constituting
Separate Crime of Kidnapping, 39 A.L.R. 5th 283, § 3 (1996) (collecting
cases). This departure was prompted by a recognition that a literal
reading of the kidnapping statutes can lead to overzealous enforcement,
with the result that "persons who have committed such substantive crimes as
robbery or assault which inherently involved the temporary detention or
seizure of the victim will suffer the far greater penalties prescribed by
the kidnapping statutes." Berry, 604 F.2d at 226.
¶ 11. This narrowing of the applicability of kidnapping laws is
illustrated by two leading cases, People v. Levy, 204 N.E.2d 842, 844
(N.Y. 1965), and People v. Daniels, 459 P.2d 225, 231-32 (Cal. 1969). In
Levy, the New York Court of Appeals reexamined the Florio definition, found
it overbroad, and rejected its earlier construction of the kidnapping law.
The court observed that, if read literally, the kidnapping statute would
"overrun" other crimes, notably robbery and rape. Levy, 204 N.E.2d at 844.
It expressly limited application of the kidnapping statute to kidnapping in
the conventional sense, which envisages the asportation of a person under
restraint and compulsion, and not merely restraint alone. Id. at 843-44.
In Daniels, the California Supreme Court reconsidered its position in
Chessman regarding the degree of asportation needed to sustain a kidnapping
conviction. In reversing a kidnapping conviction where the three victims
were forced to move about in their own homes a matter of eighteen, five,
and thirty feet respectively, the Supreme Court expressed concern that
"every assault could also be prosecuted for kidnapping . . . as long as the
slightest movement was involved." Id. at 231; see also Harkins v. State,
380 So. 2d 524, 528 (Fla. Dist. Ct. App. 1980) (if statute applied
literally, it would convert every first-degree robbery and every forcible
rape into two life felonies.); Alam v. State, 776 P.2d 345, 349 (Alaska Ct.
App. 1989) ("restrain," if too broadly defined, could turn every robbery,
rape, or simple assault into a kidnapping.)
¶ 12. There are literally hundreds of reported decisions from
around the country dealing with whether, and under what circumstances, the
detention, confinement, or asportation of a victim initially accosted for
the purpose of robbery, sexual assault or some other crime will suffice to
sustain a separate conviction for kidnapping. F. Wozniak, Seizure or
Detention for Purpose of Committing Rape, Robbery, or Other Offense as
Constituting Separate Crime of Kidnapping, 39 A.L.R. 5th 283 (1996). The
modern approach is to construe the kidnapping statutes so as "to prevent
gross distortion of lesser crimes into a much more serious crime by excess
of prosecutorial zeal." People v. Miles, 245 N.E. 2d. 688, 695 (N.Y.
1969). As the Court of Appeals noted in People v. Lombardi, 229 N.E.2d 206, 208 (N.Y. 1967), "the direction of the criminal law has been to limit
the scope of the kidnapping statute . . . to true kidnapping situations and
not to apply it to crimes which are essentially robbery, rape or assault
and in which some confinement or asportation occurs as a subsidiary
¶ 13. In determining whether a separate kidnapping conviction was
supportable, courts have considered various factors, including whether
evidence of the seizure, detention, or movement was or was not inherent in
the nature of the underlying crimes; whether the crime was facilitated by
the confinement; whether the movement or confinement prevented the victim
from summoning assistance; whether the movement or detention lessened the
defendant's risk of detection; and whether the movement or detention
created a significant danger or increased the victim's risk of harm. State
v. LaFrance, 569 A.2d 1308, 1309-12 (N.J. 1990); Burton v. State, 426 A.2d 829, 832-35 (Del. 1981); Faison v. State, 426 So. 2d 963, 966 (Fla. 1983);
State v. Raynor, 495 S.E.2d 176, 180 (N.C. Ct. App. 1998).
¶ 14. From the multiplicity of decisions following the majority
view, some commonality can be found. Whether the confinement or movement
of the victim is merely incidental to another crime depends on the
circumstances. LaFrance, 569 A.2d at 1312 ("[T]here is no mathematical
certainty to the definitions of movement, nor to the distance and duration
requirements . . . .") In State v. French, 139 Vt. 320, 321, 428 A.2d 1087, 1088 (1981), this Court recognized the general proposition that
convictions for both kidnapping and a primary charge of rape or robbery, to
which the kidnapping is alleged to have been incidental, will not stand
where the detention necessary to support the kidnapping conviction was
quantitatively no greater than the detention which is, by virtue of the
nature of the crime, incidental to the underlying rape or robbery.
¶ 15. We again visited the issue in State v. Carrasquillo, 173 Vt.
557, 557-58, 795 A.2d 1141, 1143 (2002), a case involving a charge of
kidnapping brought against a prison inmate who ordered another inmate to
restrain a nurse during an attempt to escape. In Carrasquillo, defendant
argued that the restraint of the nurse was not for a substantial period and
could not support the kidnapping conviction. We held that the two to three
minutes involved in these circumstances was sufficient to support the
kidnapping conviction. In coming to this conclusion we made clear that the
issue must be decided by a qualitative analysis of the factors surrounding
[O]ne is confined for a substantial period if that 'confinement is
criminally significant in the sense of being more than merely
incidental to the underlying crime." Whether a confinement is
sufficiently substantial to support a kidnaping conviction depends
upon a "qualitative" analysis of the factors surrounding the
confinement. Such factors relevant to this analysis include: (1)
whether the detention significantly increases the dangerousness or
undesirability of the defendant's behavior, (2) whether the
detention occurred during the commission of a separate offense,
and (3) whether the detention created a significant danger to the
victim independent of that posed by the separate offense.
Id. at 560-61, 795 A.2d at 1146 (relying on State v. La France, 117 N.J.
583, 569 A.2d 1308 (1990) (internal citations omitted)); see also State v.
Alexander, 173 Vt. 376, 387, 795 A.2d 1248, 1257 (2002) (kidnapping
conviction upheld where victim was moved approximately 100 feet to
increasingly isolated parts of the building over a period of ten to fifteen
minutes with intent to perpetrate further violence). We concluded that
"[r]estraining or confining someone is not an essential or inherent
component of an escape attempt and doing so only increased the level of
risk and 'dangerousness' of [defendant's] action." Carrasquillo, 173 Vt. at
561, 795 A.2d at 1146. In affirming the kidnapping conviction, we held
that the confinement of the nurse was not incidental to the attempted
¶ 16. Thus, the test we have adopted to determine whether
confinements or movements involved are such that kidnapping may also be
charged and prosecuted when an offense separate from kidnapping has
occurred, asks whether the confinement, movement, or detention was merely
incidental to the accompanying felony or whether it was significant enough,
in and of itself, to warrant independent prosecution.
¶ 17. Between the time we recognized the narrowing of the
applicability of kidnapping laws in French and our decision in
Carrasquillo, the legislature promulgated a major revision of the Vermont
Criminal Code and, as part of that effort, rewrote the statutory definition
of kidnapping. 1989, No. 293 (Adj. Sess.), § 3 (codified as amended at 13
V.S.A. § 2405). The current law defining kidnapping generally parallels
the Model Penal Code definition of kidnapping and requires that the
restraint must be accomplished for one of four specified purposes. See
Model Penal Code § 212.1 (1980). (FN1) Our Legislature deviated from the
Code and added an additional purpose: that the person knowingly restrain
another person with the intent to sexually assault the restrained person.
13 V.S.A. § 2405(a)(1)(D). Moreover, as part of the criminal code
revision, the penalty for kidnapping was increased to a maximum of life
imprisonment for all kidnappings. 13 V.S.A. § 2405(b). (FN2)
¶ 18. In this case, defendant was charged pursuant to 13 V.S.A. §
2405(a)(1)(D): "knowingly restrain[ing] another person with the intent to
sexually assault the restrained person or place the restrained person or a
third person in fear that any person will be sexually assaulted." The
State relied on the definition of "restrain" found in 13 V.S.A. §
2404(3)(C): " 'Restrain' means to restrict substantially the movement of
another person without the person's consent or other lawful authority by
confining the restrained person for a substantial period either in the
place where the restriction commences or in a place to which the person has
¶ 19. A review of the legislative history pertaining to this portion
of the criminal code revision reveals legislative intent to narrow the
scope of the definition of kidnapping and to increase the severity of the
punishment for defendants who kidnap their victims with the intent to
sexually assault them. Testimony before the House Judiciary Committee also
indicates that the change in the law was intended to ensure that a
substantial restraint involved in a sexual assault could be prosecuted as a
separate crime of kidnapping.
¶ 20. Thus, the Legislature provided greater specificity to the
statutory definition of kidnapping, and emphasized the availability of the
charge of kidnapping when it is used to perpetrate a sexual assault. The
confinement, movement, or detention used to facilitate a sexual assault,
however, must be criminally significant in and of itself and not merely
incidental to the sexual assault. That is, there must be a separate
kidnapping. The restraint must have increased the dangerousness of the
defendant's actions, further isolated the victim, and increased her
¶ 21. It is appropriate to narrowly construe a statute that carries
a potential sentence of life imprisonment, especially when that potential
sentence is compared with the maximum sentence available for the underlying
crime. See Berry, 604 F.2d. at 225-26 (denouncing the inequity inherent in
permitting kidnapping prosecutions of those who in reality committed lesser
or different offenses); Daniels, 459 P.2d at 237 (citing to the annotations
of the Model Code wherein the potential for abusive prosecution is
criticized.) As noted, § 2405(a)(1)(D) - kidnapping with the intent to
commit a sexual assault - carries a potential life sentence. Sexual
assault, as charged in this case, is punishable by imprisonment for not
more than twenty years. 13 V.S.A. § 3252(a)(4). This is a significant
difference. Although the plain language of § 2405(a)(1)(D) appears to
encompass the usual case of sexual assault, in which some movement or
confinement occurs, a literal interpretation of the statutory language
would not be sensible or just. We do not believe the legislature intended
to afford the prosecution a choice of two penalties of such disparate
nature for the crime of sexual assault. And, the rule of lenity requires
that any doubts created by ambiguous legislation be resolved in favor of
the defendant. State v. Fuller 168 Vt. 396, 402, 721 A.2d 475, 480
(1998); see also State v. Gundlah, 166 Vt. 518, 527-28, 702 A.2d 52, 57-58
(1997) (Court will always avoid statutory construction leading to absurd
or irrational results). We cannot assume that any restraint incident to a
sexual assault, however slight, constitutes kidnapping. We reiterate our
policy set forth in Carrasquillo and hold that the focus must be on the
quality and nature of the restraint. 173 Vt. at 560-61, 795 A.2d at 1146.
In that regard, we note that an offense such as rape necessarily
contemplates restrictions on the victim's liberty while the crime is being
¶ 22. States with similar statutory provisions have reached the
same result. In State v. Rich, 305 N.W.2d 739, 742 (Iowa 1981), the court
interpreted a kidnapping statute that provides in pertinent part:
A person commits kidnapping when he or she either confines a
person or removes a person from one place to another, knowing that
he or she has neither the authority nor the consent of the other
to do so; provided, that to constitute kidnapping the act must be
accompanied by one or more of the following:
(3) The intent to . . . subject the person to a sexual abuse.
After a review of the development of kidnapping jurisprudence, the
court in Rich held that the legislature intended the terms "confines" and
"removes" to require more than the confinement or removal that is an
inherent incident of commission of the crime of sexual abuse. It wrote:
Although no minimum period of confinement or distance of removal
is required for conviction of kidnapping, the confinement or
removal must definitely exceed that normally incidental to the
commission of sexual abuse. Such confinement or removal must be
more than slight, inconsequential, or an incident inherent in the
crime of sexual abuse so that it has a significance independent
from sexual abuse. Such confinement or removal may exist because
it substantially increases the risk of harm to the victim,
significantly lessens the risk of detection, or significantly
facilitates escape following the consummation of the offense.
Id. at 745.
¶ 23. Evaluating defendant's actions in this light, we conclude
that the movement of Carolyn from the kitchen to the bathroom floor did not
exceed the confinement or removal inherent in the commission of the crime
of sexual assault nor did it increase the danger to the victim over and
above the danger presented by the attempted sexual assault. Defendant's
actions cannot, therefore, provide the basis for a kidnapping conviction.
See Wilson v. State, 500 A.2d 605, 610 (Del. 1985) (restraint was not more
than is ordinarily incident to the offense of Rape).
Defendant's conviction and sentence for attempted sexual assault are
affirmed. Defendant's conviction and sentence for kidnapping are vacated.
FOR THE COURT:
FN1. In the Model Penal Code, kidnapping is defined 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 felony or flight thereafter; to inflict bodily injury on or
terrorize the victim; or to interfere with the performance of any
governmental or political function.
FN2. Under the prior law, kidnapping anyone over sixteen years of age
carried a maximum term of twenty five years, kidnapping anyone under the
age of sixteen years carried a maximum term of thirty years, and, if the
intent of the kidnapping was to extort money or other valuable thing, the
maximum penalty was life imprisonment.