S056560, Opinion — State v. Mejia

1
Argued and submitted June IL 2009, decision of Court of Appeals and judgment of
circuit court affirmed March 4, 2010
STATE OF OREGON,
Respondent on Review,
v.
LUIS ARMANDO MEJIA,
Petitioner on Review.
(CC 0401-30443; CA A128080; SC S056560)
227 P3d 1139

2 	State v.
En Banc
On review from the Court of Appeals.*
Laura A. Frikert, Deputy Public Defender, Salem, argued
the cause and filed the brief for petitioner on review. With her
on the brief was Peter Gartlan, Chief Defender, Office of
Public Defense Services.
Stacey RJ Guise, Senior Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent on
review. With her on the brief were John R. Kroger, Attorney
General, and Jerome Lidz, Solicitor General.
GILLETTE, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
*Appeal from the Multnomah County Circuit Court, Edward ,J. Jones, Judge.
218 Or App 736, 180 P3d 763 (2008).

Cite as 348 Or 1 	3
GILLETTE, J.
The issue in this criminal case is whether the evi-
dence was sufficient to permit a trier offact to find defendant
guilty of kidnapping in the second degree. The trial court
determined that that evidence was sufficient and denied
defendant's motion for a judgment of acquittal. Defendant
appealed, and the Court of Appeals affirmed without opinion.
State u. Mejia, 218 Or App 736, 180 P3d 763 (2008). We
allowed defendant's petition for review and now affirm the
decision of the Court of Appeals and the judgment of the trial
court.
Because defendant appeals from the trial court's
denial of his motion for a judgment of acquittal, we state the
facts of the case in the light most favorable to the state. See
State u. Casey, 346 Or 54, 56, 203 P3d 202 (2009) (restating
that rule). In 1999, defendant and the victim met in Las
Vegas, where they began a romantic relationship and had a
child together. Later, after the relationship soured, the vic-
tim moved to Portland with the child. The victim remained in
touch with defendant, but the couple continued to have prob-
lems with their relationship. Eventually, the victim obtained
a restraining order against defendant.
On the evening of November 20, 2003, while the
restraining order was still in effect, the victim put her daugh-
ter to bed at her brother's house and went to her own apart-
ment to change clothes, intending to go out to a movie. After
taking a bath and changing her clothes, the victim opened
the door to her apartment to leave. As she started out her
doorway, with "probably * * * one foot out," defendant-who
apparently had 	been lurking outside-grabbed her and
pushed her back inside the apartment.
Defendant forced the victim into the apartment's liv-
ing room. The victim struggled with defendant and told him
to leave, but defendant kept insisting, "I want to talk to you."
The victim attempted to call for help on her cell phone, but
defendant grabbed the phone and put it in his pocket. Defen-
dant then forced the victim down the hallway of the apart-
ment, toward her bedroom. The victim became aware that
defendant was, as she phrased it, "trying to seclude" her, and
she began screaming for help. Defendant put his hand over

4 	State v.
the victim's mouth. The victim continued to struggle, kicking
and biting defendant. Defendant pushed the victim into the
bedroom. Police officers later estimated that the distance
from the front door to the area in front of the victim's bed-
room was about 12 feet, and the distance from that point to
the back of the bedroom was another 1 7 feet.
Once in the bedroom, defendant forced the victim up
against a dresser, saying, "If I can't have you, nobody will."
He took out a handgun and pointed it at the victim's upper
body and head, telling her, "I'll kill myself and I'll kill you. I
have nothing to live for." The victim, terrified and crying,
attempted to reason with defendant, saying that he was
going to leave their daughter without a mother. Defendant
began to relax his hold on the victim and, at that point, the
victim made a dash for the bedroom window in an attempt to
escape. Defendant grabbed the victim by the legs, causing the
victim to fall on the bed, which was against the back wall of
the bedroom. The victim continued to kick and struggle, and
defendant "smashed" a comforter into the victim's face, mak-
ing it difficult for her to breathe. Defendant then pinned the
victim to the floor, straddling her, and began choking her
with both hands, saying that he would kill her. As the victim
would begin to lose consciousness, defendant would ease his
grip on her and allow her to breathe; the victim would then
attempt to get up and away from defendant, at which point
defendant would begin choking her again. That pattern
repeated itself several times over the next few minutes.
Eventually, the victim stopped struggling and began
talking to defendant, telling him that she "wanted to work it
out" with him, and other "things I know that he's always been
wanting to hear." The victim told defendant that she loved
him and that she would not call the police; defendant indi-
cated that if she did, he would shoot her and the police. The
victim agreed to meet with defendant in the morning, and
defendant slowly let her get to her feet. Defendant wiped
some blood off of the victim's face with toilet paper, helped
her put her coat on, and walked her to her car. After stating
that he would call the victim the next morning, defendant
returned the victim's cell phone to her and left. The victim

Cite as 348 Or 1 (2010) 	5
drove to her brother's house and told him what had hap-
pened. The brother called the police. By the victim's estima-
tion, the episode with defendant had lasted "an hour and a
half, at least."
The state charged defendant with two counts offirst-
degree kidnapping; one count each of first-degree burglary,
unlawful use of a weapon, and menacing; and five counts of
fourth-degree assault. Both kidnapping charges alleged that
defendant "did unlawfully and knowingly, without consent or
legal authority, take [the victim] from one place to another,
with intent to interfere substantially with the said [victim's]
personal liberty***." At the close of the state's case during
defendant's jury trial, defendant moved for a judgment of
acquittal, arguing, with respect to the kidnapping charges,
that a reasonable trier of fact could not find that defendant
moved the victim from one place to another, or that he had
intended to interfere substantially with her personal liberty.
Instead, defendant argued, any movement of the victim was
"incidental" to his assault of her. The trial court denied the
motion. The jury convicted defendant of the lesser-included
offense of second-degree kidnapping (both counts), burglary,
menacing, and assault (three counts).
Defendant appealed the denial of his motion for a
judgment of acquittal on the kidnapping charges, arguing,
inter alia, that his "minimal movement of the victim" was
insufficient, as a matter oflaw, to prove an "intent to inter-
fere substantially with [the victim's] personal liberty." ORS
163.225(1).1 Specifically, defendant framed the issue before
the Court of Appeals in terms of
"whether movement from one area of an apartment, to
another area in the same apartment, during the course of
threats and assaults, evidenced an intent on defendant's
part to interfere substantially with [the victim's] personal
liberty, or whether the movement was merely incidental to
the commission of the assaults."
Defendant did not renew in the Court of Appeals his argu-
ment to the trial court that there was insufficient evidence
1 Defendant does not challenge his convictions for burglary, assault, and
menacing.

that he had moved the victim "from one place to another."
The Court of Appeals affirmed defendant's convictions with-
out opinion, and we granted review.
When this court reviews the denial of a motion for a
judgment of acquittal, the relevant question is "whether,
after viewing the evidence in the light most favorable to the
state, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." State v.
King, 307 Or 332, 339, 768 P2d 391 (1989). Kidnapping in the
second degree is defined by ORS 163.225, which provides, in
part:
"(1) 	A person commits the crime of kidnapping in the
second degree if, with intent to interfere substantially with
another's personal liberty, and without consent or legal
authority, the person:
"(a) 	Takes the person from one place to another; or
"(b) 	Secretly confines the person in a place where the
person is not likely to be found."
The state charged defendant with kidnapping the victim by
taking her from one place to another, i.e., kidnapping under
ORS 163.225(1)(a). Accordingly, the state had to establish
that defendant, (1) with intent to interfere substantially with
[her] personal liberty, (2) took the victim from one place to
another (3) without consent or legal authority. See State v.
Walch, 346 Or 463, 468, 213 P3d 1201 (2009) (listing essen-
tial elements of kidnapping).
The dispute on review centers on the first of those
elements, viz., whether there was evidence of defendant's
intent to interfere substantially with the victim's personal
liberty.2 Defendant argues that the state was required to
prove that intent by proving that he either moved or intended
to move the victim a 	"substantial distance." Defendant
asserts that his movement of the victim-a total distance of
no more than 29 feet, primarily (if not exclusively) within her
Before this court, defendant also asserts, in a cursory fashion, that there was
not sufficient evidence to establish that he took the victim from one place to
another. However, defendant concedes that he did not raise that argument before
the Court of Appeals. It therefore is not properly before this court, and we do not
address it.

Cite as 348 Or 1 (2010) 	7
own home-is insufficient to establish an intent to move the
victim a substantial distance and, therefore, is insufficient to
establish the element of intent to interfere substantially with
the victim's liberty. As for his other actions, such as taking
the victim's cell phone and preventing her from escaping the
apartment, defendant argues that those actions were inci-
dental to his other crimes, such as assault and menacing, and
that they also do not evince an intent to move the victim a
substantial distance.
The state responds that defendant has misconstrued
the intent element of kidnapping. According to the state, it
may establish an intent to interfere substantially with the
victim's personal liberty by demonstrating "that [defendant]
intended either to move the victim a substantial distance or
to confine the victim for a 	substantial period of time."
(Emphasis the state's.) In effect, the state argues that,
regardless of which act element is charged in the indictment,
it may establish the requisite intent-"to interfere substan-
tially with another's personal liberty"-by proving that the
defendant intended to take or to confine the victim. That
argument about the purpose, meaning, and scope of the
second-degree kidnapping statute leads us to an examination
of the legislative history of that statute.
The legislature adopted the current kidnapping stat-
utes in 1971. Or Laws 1971, ch 743, §§ 97-103. Before that
time, kidnapping statutes were broadly drafted. Prosecutors
could take advantage of those broad statutes by charging
defendants with kidnapping when they had "moved their vic-
tims only a short distance or confined their victims for a short
duration," often "incidentally to the commission of another
crime, such as rape or robbery." Walch, 346 Or at 4 70. 3
To avoid the potential for such a broad application,
the legislature sought to draft the current version of the kid-
napping statutes more narrowly. As this court has described
it, the legislative purpose was to avoid any use of kidnapping
as a substitute for some other crime. State v. Garcia, 288 Or
3 As Walch notes, the commentary to the 1971 statute does not specify
"whether the drafters believed that that specific problem existed in Oregon under
the pre-1971 Oregon statute." 346 Or at 470 n 5.

413, 416-20, 605 P2d 671 (1980). In Garcia, this court studied
the history of those statutes and determined that the legis-
lative intent was that "there be no conviction of the defendant
for the separate crime of kidnapping where the detention or
asportation of the victim is merely incidental to the accom-
plishment of another crime * * *." Id. 	at 420 (emphasis
added). Rather, the legislature reserved the prosecution and
punishment of kidnapping for situations "where the deten-
tion or asportation is not merely incidental to the commission
of the underlying crime." Id. (emphasis omitted). The intent
element of kidnapping was the legislature's means to achieve
that goal. Walch, 346 Or at 4 73 (noting that "[t]he drafters'
wording of the intent element*** makes it apparent that it
was through that element that they sought to avoid an over-
inclusive definition of second-degree kidnapping" (emphasis
in original)). In other words, the legislature adopted the
requirement that a defendant intend to substantially inter-
fere with a victim's personal liberty in order" 'to distinguish
kidnapping from incidental conduct that might accompany
some other crime.'" State u. Wolleat, 338 Or 469, 477, 111
P3d 1131 (2005) (quoting Minutes, Criminal Law Revision
Commission, June 17, 1969, 20).
In Wolleat, this court, after again reviewing the leg-
islative history of the kidnapping statute, provided a further
explanation of what the legislature meant when it enacted
the requirement that a defendant must intend to interfere
substantially with a victim's personal liberty:
"The decision in Garcia removes some of the ambiguity
from the phrase 'intent to interfere substantially with
another's personal liberty.' It confirms that the liberty
interest that the statute protects from interference is the
interest in freedom of movement and concludes that, in
order for the interference to be substantial, a defendant
must intend either to move the victim a 'substantial dis-
tance' or to confine the victim for a 'substantial period of
time.'"
338 Or at 475.
Two recent cases provide examples of facts from
which a reasonable trier of fact could not infer that the

Cite as 348 Or 1 (2010) 	9
defendant intended to interfere substantially with the vic-
tim's personal liberty. In Wolleat, the defendant returned
home from a night of drinking and entered the bedroom that
he 	shared with the victim, 	his 	fiancee. 	The 	defendant
grabbed the victim by the hair, pulled her out of bed, dragged
her approximately 15 to 20 feet into the living room, and pro-
ceeded to assault the victim until she fled the house. This
court held that "[m]oving a victim from one room to another
while committing another crime does not constitute moving
the victim a substantial distance." Id. at 4 78. In other words,
that movement was "not sufficient, by itself, to give rise to an
[inference of an] intent to interfere substantially with the
victim's liberty to move freely." Id. (emphasis added). Fur-
thermore, the record did not contain any other basis from
which a reasonable juror could infer that the defendant had
intended either "to move the victim a greater distance" than
he had during the assault, or to "transport [the victim] to a
place of confinement." Id. Therefore, there was no evidence
that the defendant had intended to interfere substantially
with the victim's personal liberty. Put another way, there
was no kidnapping because the defendant's forceful move-
ment of the victim was merely incidental to his commission of
an assault and, therefore, was insufficient, standing alone, to
establish an intent to interfere substantially with the vic-
tim's liberty.
In State v. Zweigart, 344 Or 619, 188 P3d 242 (2008),
cert den, _US_ , 130 S Ct 56, 175 L Ed 2d 45 (2009),
the defendant conspired with another individual to stage a
robbery at the house that the defendant shared with the vic-
tim, and to kill the victim during the staged robbery. As
planned, the co-conspirator entered the house, roused the vic-
tim and the defendant from their bed, and led them down-
stairs at gunpoint. While the co-conspirator held the victim
at gunpoint downstairs, the defendant rounded up guns and
money from the house to give to his co-conspirator. The vic-
tim was then shot and killed. This court held that the move-
ments of the victim "were incidental to the robbery and shoot-
ing" and, therefore, were insufficient, standing alone, to
establish intent to interfere substantially with the victim's
liberty:

10 	State v. Mejia
"[M]inimal movement that amounts to incidental conduct
that might accompany some other crime is, standing alone,
insufficient proof of intent to support a conviction."
Id. at 636 (citing Wolleat, 338 Or at 478).
Not surprisingly, defendant relies on Wolleat and
Zweigart here. But both Wolleat and Zweigart involved situ-
ations in which the actual physical movement of the victims
was the only evidence available to prove whether the defen-
dants intended to kidnap the victims by substantially inter-
fering with their personal liberty. Those cases demonstrate
that, when the only evidence of a defendant's intent is physi-
cal movement of the victim, a reasonable juror may only infer
intent to interfere substantially with a victim's freedom of
movement if there is "evidence that the defendant moved
the victim a substantial distance." Zweigart, 344 Or at 636
(emphasis added). Consequently, if the defendant did not
move the victim a substantial distance, and there is no
other evidence from which a trier of fact may infer an intent
to 	interfere 	substantially 	with 	the 	victim's 	personal
liberty, then the evidence will not support a conviction for
kidnapping. 4
This is not a case in which there was no other evi-
dence, however. As the court stated in Garcia:
"As finally enacted the [kidnapping] law does not even
require that there actually be a substantial interference
with the victim's personal liberty; it is only necessary that
the perpetrator have the 'intent to interfere substantially'
with the victim's personal liberty to make the malefactor
guilty of kidnapping ifhe commits an act proscribed by ORS
163.225."
288 Or at 421 (emphasis in original). The state points to evi-
dence, albeit circumstantial, in the record before this court
4 We reemphasize, as we did in Walch, that it is not necessary to prove that a
defendant actually moved the victim over a "substantial distance" in order to prove
the act element of a kidnapping by asportation-i.e., to prove that the defendant
took the victim "from one place to another," as required by ORS 163.225(1)(a).
Walch, 346 Or at 4 76 n 7 (noting that this court's cases "do not state* * *that 'sub-
stantial movement' is the only way to prove that a defendant moved a victim from
one place to another").

Cite as 348 Or 1 (2010) 	11
that the state asserts distinguishes this case from Wolleat
and Zweigart. We turn to that argument.
The state contends that, when it charges a defendant
with kidnapping by taking the victim from one place to
another, it may establish the defendant's intent to interfere
substantially with the victim's personal liberty by, inter alia,
demonstrating that a defendant intended to confine a victim
for a substantial period of time when she wished to leave. In
so arguing, the state relies on this court's statement in
Wolleat that
"in order for the interference [with a victim's personal lib-
erty] to be substantial, a defendant must intend either to
move the victim a 'substantial distance' or to confine the
victim for a 'substantial period of time.'"
338 Or at 475.
Defendant responds that to permit the state to prove
the defendant's state of mind in that way would allow the
state to prove a violation of ORS 163.225(1)(a) (taking a per-
son from one place to another) by proving what was, in fact, a
violation of ORS 163.225(1)(b) (secretly confining a person in
a place where she is unlikely to be found). As we shall
explain, however, the state's argument is not quite what
defendant claims it to be. In this case, the state urges, there
was evidence that defendant intended to confine the victim in
her apartment for a substantial period of time-an act which,
if carried out, certainly would "interfere substantially" with
the victim's personal liberty. The state specifically points to
the evidence that defendant reversed the victim's direction of
movement, took the victim's cell phone, covered the victim's
mouth to silence her, and prevented the victim from escaping
by pulling her away from the window. The state contends
that, from this evidence, a reasonable trier of fact "could infer
that defendant had the separate intent to keep the victim in
her apartment and hold her captive." Accordingly, the state
argues, the evidence supports a finding of intent to interfere
with the victim's personal liberty.
We agree with the state. In our view, the requisite
intent, 	viz., 	the 	"intent 	to 	interfere 	substantially 	with
another's personal liberty," may be shown in at least those

12 	State v. Mejia
two ways, and possibly in others. The fact that the method of
proof of that intent here resembles the alternative definition
of the act of kidnapping, viz., "[s]ecretly confining [a] person
in a place where the person is not likely to be found," ORS
163.225(1)(b), is no impediment; such evidence is probative of
defendant's state of mind, and it was permissible for the trier
of fact to use it in that way. 5
Applying the foregoing holding to the facts, there is
evidence from which the trier of fact could have found that
defendant's acts were more than just incidental to his acts of
menacing and assaulting the victim. Defendant moved the
victim from her front doorway into her bedroom, took away
her cell phone, stifled her screams, physically restrained her,
pinned her down and choked her when she attempted to
escape, all with the plausible intent to interfere with her lib-
erty. In fact, he did interfere with the victim's liberty: He
kept the victim confined for about an hour and a half. Such
evidence would be sufficient to allow a reasonable trier of fact
to find that, apart from his various assaultive and menacing
acts, defendant intended to interfere substantially with the
victim's personal liberty. The trial court did not err in deny-
ing defendant's motion for judgment of acquittal on the kid-
napping charges.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
5 We say "resemble" because, although the evidence shows that defendant con-
fined the victim, the evidence did not permit the inference that the locale of the con-
finement-the victim's own apartment-was a place where the victim "[was] not
likely to be found."