State v. Goodhue

Annotate this Case
State v. Goodhue (2002-046); 175 Vt. 457; 833 A.2d 861

2003 VT. 85

[Filed 05-Sep-2003]

       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.

                                 2003 VT. 85

                                No. 2002-046

  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
  (Wis. 1977).
       ¶  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
  the confinement.

    [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
  escape.  Id.

       ¶  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
  been moved."

       ¶  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:

                                       Associate Justice


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.