State v. Miles

Asportation can only be shown “when the defendant changes the position of the victim such that, as a matter of situation and context, the victim’s ending place is qualitatively different from the victim’s starting place,” State v. Sierra, 349 Or 506, 513, 254 P3d 149 (2010), adh’d to as modified on recons, 349 Or 604, 249 P3d 759 (2011), however, that movement “must not be ‘only “incidental”’ to another crime.” Id. at 514.

Defendant appeals his conviction of multiple counts of kidnapping and sex crimes. Defendant first assigned error to the trial court’s denial of his motion for judgment of acquittal, arguing that the State failed to provide sufficient evidence to prove the “asportation” element the two kidnapping counts and the “under the age of 12” element for the first-degree sex crime conviction. To be convicted of first-degree sexual offenses, ORS 163.375(1)(b) requires that the victim be “under 12 years of age.” Because the victim in this case was not, the Court reversed and remanded with instructions to enter a conviction of second-degree kidnapping if the elements were met. Further, asportation can only be shown “when the defendant changes the position of the victim such that, as a matter of situation and context, the victim’s ending place is qualitatively different from the victim’s starting place,” State v. Sierra, 349 Or 506, 513, 254 P3d 149 (2010), adh’d to as modified on recons, 349 Or 604, 249 P3d 759 (2011). The movement “must not be ‘only “incidental”’ to another crime.” Id. at 514. The Court found that enough evidence was offered for a factfinder to conclude that the movement was not incidental. Thus, the trial court did not err in denying Defendant’s motion on the kidnapping counts.  

Finally, Defendant assigned error to the trial court’s sentencing. Defendant argued that the trial court incorrectly applied the anti-merger statute (ORS 161.067), arguing they should have applied the criminal episode statute (ORS 131.505(4)). The Court found that the trial court may erred in sentencing because it used the term “time for reflection” which was not a consideration under ORS 131.505(4). Accordingly, the Court reversed and remanded for entry of conviction for second-degree kidnapping; remanded for resentencing; otherwise affirmed.