S055830, Opinion — State v. Walch

463
Argued and submitted November 12, 2008, decision of Court of Appeals and
judgment of circuit court affirmed July 16, 2009
STATE OF OREGON,
Respondent on Review,
v.
JUSTIN KEITH WALCH,
Petitioner on Review.
(CC 041108; CA A127510; SC S055830)
213 P3d 1201

464 	State v. Walch
En Banc
On review from the Court of Appeals.*
George W. Kelly, Eugene, argued the cause and filed the
brief for petitioner on review.
Joanna J. Jenkins, Assistant Attorney General, argued
the cause and filed the brief for respondent on review. With
her on the brief were Hardy Myers, Attorney General, and
Mary H. Williams, Solicitor General.
BALMER,J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
Gillette, J., 	dissented and filed 	an opinion in which
De Muniz, C. J., and Durham, J., joined.
* Appeal from Clatsop County Circuit Court, Philip Nelson, Judge. 218 Or
App 86, 178 P3d 301 (2008).

Cite as 346 Or 	465
BALMER,J.
The issue in this criminal case is whether evidence
that defendant dragged the victim 15 feet and forced her into
the trunk of a car is sufficient to show that defendant moved
the victim "from one place to another" as that phrase is used
in the kidnapping statute, ORS 163.225(1)(a), or if the state
instead must prove that defendant moved the victim a "sub-
stantial distance." The trial court determined that the jury
could have found that defendant had moved the victim from
one place to another and denied defendant's motion for a
judgment of acquittal. Defendant appealed, and the Court of
Appeals affirmed. State v. Walch, 218 Or App 86, 178 P3d 301
(2008). We allowed review and now affirm, although we do so
for reasons somewhat different than those relied upon by the
Court of Appeals.
Because the issue arises on a motion for judgment of
acquittal, we state the facts in the light most favorable to the
state. State v. Fries, 344 Or 541, 543, 185 P3d 453 (2008). At
approximately 9:00 p.m. on March 15, 2004, the victim
arrived at her friend Jeremy's house. The victim contacted
another 	friend, 	Amanda, 	and 	arranged 	to 	purchase
$50 worth of methamphetamine; the victim mentioned to
Amanda that she had $350 in cash with her. Sometime later,
Amanda, her friend Robert, and some other acquaintances
arrived at the house. The victim gave Amanda the money to
purchase the drugs, and the group left. Later that evening,
defendant and Robert returned to the house with the drugs
that the victim had purchased. The victim, Robert, and
defendant shared the drugs, and the two men left.
At around 3:30 a.m., Robert and defendant returned
to the house. Robert came into the house and told the victim
that he had been in an accident in Amanda's car, which the
two 	men 	had been 	driving 	that 	night. 	Robert 	phoned
Amanda, spoke with her privately for a few minutes, and
then told the victim that Amanda wanted to speak with her.
Amanda asked the victim to go outside and look at her car,
because she did not believe that Robert had been in an acci-
dent. The victim walked outside, looked at the car, and deter-
mined that there was no damage.

466 	State v. Walch
After looking at the car, the victim turned to walk
back toward the house but heard a rustling in the bushes.
Defendant emerged from the bushes; he put the victim in a
chokehold, pushing her to the ground. Eventually, defendant
turned the victim over and began strangling her with his
hands. In the course of the struggle, defendant dragged the
victim five to 15 feet toward the car. The victim regained her
footing and asked why defendant was attacking her; he
responded "I want your money." Although she had her money
in her pocket, the victim told defendant that it was in the
house. As defendant and the victim continued to struggle, the
victim was pushed to the ground again. Defendant then
picked her up and threw her into the trunk of the car. Defen-
dant tried to close the victim in the trunk, but the lid hit the
victim's head and would not close. The victim locked her
knees against the inside of the trunk, so that defendant could
not push her farther inside, and defendant was unable to
close the lid. Eventually, defendant pulled the victim out of
the trunk and told her to go to the house and retrieve her
money.
The victim returned to the house. 	Once inside,
Robert helped the victim change her clothes. At that point,
the victim lost track of the pants that she had been wearing,
along with the money that had been inside the pocket.
Jeremy's mother called 9-1-1, and an ambulance arrived and
transported the victim to the hospital. Police later arrested
defendant in an apartment, where they also found $250 in
cash. In searching Amanda's car, police found three rolls of
tape, a meat cleaver, and a crowbar.
A grand jury indicted defendant for multiple crimes,
including kidnapping in the first degree. ORS 163.235(1), set
out below. At the close of the state's case, defendant moved
for a judgment of acquittal on the kidnapping charge, argu-
ing that the evidence was insufficient to show that the move-
ment of the victim had been "substantial." The trial court
denied that motion, and a jury convicted defendant of kid-
napping in the first degree. 1 Defendant appealed, arguing
1 The jury also convicted defendant of robbery in the first degree, conspiracy to
commit robbery in the first degree, and assault in the fourth degree. The jury
acquitted defendant of conspiracy to commit aggravated murder, attempted aggra-
vated murder, and conspiracy to commit kidnapping in the first degree.

Cite as 346 Or 463
again that the evidence was insufficient to sustain a kidnap-
ping conviction. 	Specifically, he argued that no reason-
able factfinder could have found that he had moved the vic-
tim "from 	one 	place to 	another," 	as 	required 	by 	ORS
163.225(1)(a), the companion statute to ORS 163.235. 2
As noted, the Court of Appeals affirmed. The court
first determined, based on this court's opinion in State v.
Murray, 340 Or 599, 136 P3d 10 (2006), that the phrase "from
one place to another" in ORS 163.225(1)(a) requires that the
victim's movement be "substantial." The court then noted the
qualitative differences between the open driveway from
which the victim had been moved and the enclosed trunk in
which she had been placed. In concluding that the movement
in this case was sufficient, the court reasoned as follows:
"Because Murray teaches that movement from one place to
another is 'substantial' movement, and defendant moved
the victim from one place to another, we conclude that the
movement here was also substantial, despite the fact that
the actual distance, as measured in feet and inches, might
be less than the distance the court found to be insubstantial
in [other cases]."
Walch, 218 Or App at 92. Defendant petitioned for review of
the Court of Appeals decision, and we allowed review to con-
sider whether moving the victim from the driveway to the car
trunk here qualified as moving the victim "from one place to
another" for purposes of ORS 163.225(1)(a).
In reviewing the sufficiency of the evidence in a crim-
inal case, "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). The first-degree kidnapping statute,
ORS 163.235(1), provides:
2 Before the Court of Appeals, defendant also argued that the trial court had
erred in refusing to give an instruction on the lesser-included offense ofrobbery in
the second degree and that the trial court had erred in imposing consecutive sen-
tences. The Court of Appeals rejected those arguments, State v. Walch, 218 Or App
86, 92-96, 178 P3d 301 (2008), defendant does not raise them in this court, and we
do not address them.

468 	State v. Walch
"A person commits the crime of kidnapping in the first
degree if the person violates ORS 163.225 with any of the
following purposes:
"(a) 	To compel any person to pay or deliver money or
property as ransom;
"(b) 	To hold the victim as a shield or hostage;
"(c) 	To cause physical injury to the victim; or
"(d) 	To terrorize the victim or another person."
ORS 163.225, in turn, provides, in relevant 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."
Thus, to establish kidnapping here, the state had to prove
that 	defendant (1) took the victim "from one 	place 	to
another"; (2) "with intent to interfere substantially with [her]
personal liberty"; (3) "without consent or legal authority";
and (4) with the purpose of causing her "physical injury."
ORS 163.235(1)(c); ORS 163.225(1)(a).
Defendant does not argue that the evidence was not
sufficient for the jury to find that he intended to "interfere
substantially" with the victim's personal liberty, that he
acted "without consent or legal authority," and that his pur-
pose in taking the victim was to cause her "physical injury."
His sole argument on review is that the facts described above
are not sufficient to permit a reasonable juror to find that he
took the victim "from one place to another," as required by
ORS 163.225(1)(a).
As this court recently noted, an analysis of the text
and context of the phrase "from one place to another" in the
kidnapping statute provides little guidance in determining
its meaning:
"The question of what is included in the concept of'tak-
ing' a person 'from one place to another' is, at bottom, an

Cite as 346 Or 463 (2009) 	469
exercise in metaphysics. The words 'from' and 'to' create no
problem here, because they clearly describe the idea of
movement, i.e., of a change of position. And 'another' simply
replicates 'place'-i.e., the statutory phrase fairly may be
paraphrased as a matter of standard English to require
that a person be moved 'from place to place.' Thus, in the
final analysis, this case comes down to the question of how
one is to define the term 'place' for the purposes of ORS
163.225(1)(a).
"And here is where the metaphysics problem arises. The
criminal code, of which ORS 163.225 is a part, contains no
definition of 'place.' Absent a special definition, we ordinar-
ily would resort to dictionary definitions, assuming that the
legislature meant to use a word of common usage in its ordi-
nary sense. See PGE [v. Bureau of Labor and Industries],
317 Or [606,] 611[, 859 P2d 1143 (1993)] (noting that words
of common usage typically should be given their plain, nat-
ural, and ordinary meaning). But resort to a dictionary gets
us nowhere here. 'Place' is defined, in Webster's Third New
lnt'l Dictionary 1727 (unabridged ed 2002), as 'an indefinite
region or expanse.' Such a definition hardly can be said to
clarify the issue. (There are many other definitions, but
none comes as close as the foregoing to addressing the prob-
lem before us.)"
Murray, 340 Or at 603-04. We turn to legislative history to
aid us in determining legislative intent.
To understand the legislature's intent in using the
phrase "from one place to another" in ORS 163.225(1)(a), it is
useful to begin with a discussion of the definition of kidnap-
ping before the legislature enacted a comprehensive revision
of Oregon's criminal laws, including the kidnapping statutes,
in 1971. 3 At common law in England, kidnapping was defined
as "the forcible abduction or stealing away" of a person from
that person's own country to another. 4 William Blackstone,
Commentaries on the Laws of England 219 (1769). In the
United States, one needed to remove a person only from that
person's own state, rather than from the country, and by the
3 In 1967, the legislature established the Criminal Law Revision Commission
to revise and modernize the criminal laws of Oregon. Or Laws 1967, ch 573, §§ 1-2.
In 1971, as part of that comprehensive revision, the legislature enacted the current
kidnapping statutes, ORS 163.225 and ORS 163.235. Or Laws 1971, ch 743, §§ 98-
99.

470 	State v. Walch
1950s, nearly all state legislatures had broadened the defi-
nition even further. Rollin M. Perkins, Criminal Law 134-35
(1957). California's kidnapping statute, for example, pro-
vided that " '[e]very person who seizes, confines, inveigles,
entices, decoys, abducts, conceals, kidnaps or carries away
any individual by any means whatsoever with intent to hold
or detain, or who holds or detains, such individual for ran-
som, reward or to commit extortion or robbery' " committed
the crime of kidnapping. See People v. Knowles, 35 Cal 2d
175, 180, 217 P2d 1, 4 (1950) (quoting California's kidnap-
ping statute; emphasis omitted). 4
With that broader definition, 	prosecutors began
charging defendants with kidnapping when they moved their
victims only a short distance or confined their victims for a
short duration. 	Commentary to 	Criminal Law Revision
Commission Proposed Oregon Criminal Code, Final Draft
and Report§ 99, 99-100 (July 1970). As a result, even when
defendants moved or confined their victims incidentally to
the commission of another crime, such as rape or robbery,
prosecutors 	might 	charge 	them 	with 	kidnapping. 5 	The
4 Oregon's pre-revision kidnapping statute required proof that the perpetra-
tors intended to remove the victim from the state or to secretly confine the victim
within the state. Former ORS 163.610 (1969), repealed by Or Laws 1971, ch 743,
§ 432, provided:
"Every person who without lawful authority forcibly seizes and confines,
inveigles or kidnaps another, with intent to cause such other person to be
secretly confined or imprisoned in this state against his or her will, or to cause
such other person to be sent out of the state against his or her will, shall be
punished by imprisonment in the penitentiary for not more than 25 years or by
a fine not exceeding $10,000, or both."
Before the 1971 revision, the definition of kidnapping in Oregon had remained
nearly unchanged for almost 100 years. The Codes and General Laws of Oregon,
ch II, title II, § 17 46 (Hill 1887).
The commentary to the revised criminal code does not indicate whether the
drafters considered Oregon's statute to be similar to those of other states that are
discussed in the commentary. Indeed, the commentary contains little discussion of
the elements of the pre-1971 Oregon kidnapping statute, cases decided under that
statute, or the effect of the changes made in the 1971 revision, except to state that
the draft "retains the existing Oregon system * * * of dividing kidnapping into sep-
arate degrees" and that "the kidnapping in the second degree section retains the
basic provisions of [then-existing second-degree kidnapping]." Commentary to
Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft
and Report§ 99, 100 (July 1970).
5 Nothing in the commentary suggests whether the drafters believed that that
specific problem existed in Oregon under the pre-1971 Oregon statute.

Cite as 346 Or 463 (2009) 	471
drafters of the revised criminal code thus sought to reesta-
blish kidnapping as an independent crime based on facts dif-
ferent from those that would support a conviction for another
crime:
Id.
"Current kidnapping statutes apply to abductions which
are incidental to or an integral part of the commission of an
independent crime such as robbery or rape where the victim
is removed and confined for a given period to effectuate the
criminal purpose. Where the detention period is briefthere
is no genuine kidnapping. However, cases of this nature are
sometimes prosecuted as kidnapping in order to secure the
death penalty or life imprisonment for behavior that
amounts in substance to rape or robbery in jurisdictions
where these offenses are not subject to such penalties."
Although the legislative history demonstrates that
the drafters were concerned with excluding from the kidnap-
ping statutes conduct that was merely incidental to another
crime, determining how the drafters intended to exclude that
conduct is a more difficult undertaking. The commentary is of
little use. As noted above, it describes the problem in detail.
But, at least in their effort to clarify the defendant's required
"movement" or confinement of the victim for kidnapping pur-
poses, the drafters were more explicit about the tests that
they rejected than about the test that they eventually
adopted. The drafters considered solutions adopted by other
jurisdictions, as described in the commentary:
"The Model Penal Code provides for kidnapping only where
the kidnapper removes the victim from his place of residence
or business, or a substantial distance from the vicinity where
he is found, or if the kidnapper unlawfully confines the vic-
tim for a substantial period in a place of isolation. New York
has selected the arbitrary figure of twelve hours to desig-
nate the point in the course of a criminal project at which
the abduction becomes a major offense in itself and not
merely a facet of some other crime."
Id. at 100 (emphasis added). But the proposed statute's evo-
lution and the legislative history demonstrate that the draft-
ers did not entirely adopt either the Model Penal Code or the
New York solution that they described.

472 	State v. Walch
The drafters rejected New York's solution of an arbi-
trary time limit outright; no drafts contained a time limit of a
specified number of minutes or hours. See Minutes, Criminal
Law Revision Commission, Subcommittee No 2, Oct 25, 1968,
3 (discussing and rejecting numerical limit). Early drafts
adopted the Model Penal Code's solution ofrequiring that the
kidnapper move the victim a "substantial distance." In the
first preliminary draft, and in one of three alternatives in the
second preliminary draft, the drafters distinguished between
second-degree kidnapping and first-degree kidnapping in
part based on whether the defendant had moved the victim a
"substantial distance." That is, moving the victim a substan-
tial distance helped to elevate the crime from second- to first-
degree kidnapping. 	Criminal Law Revision Commission,
Subcommittee No 2, Preliminary Draft No 1, Art 12, § 3(1)
(Oct 1968); Criminal Law Revision Commission, Subcommit-
tee No 2, Preliminary Draft No 2, Art 12, § 3 (alternate 2)
(Dec 1968). By the third draft, however, the drafters distin-
guished between first- and second-degree kidnapping based
solely on the kidnapper's purpose and eliminated any refer-
ence to moving the victim a substantial distance. Criminal
Law Revision Commission, Subcommittee No 2, Preliminary
Draft No 3, Art 12, § 3 (Feb 1969). In fact, "[a]s finally
enacted[,] the law does not even require that there actually
be a substantial interference with the victim's personal lib-
erty; 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 * * *." State v.
Garcia, 288 Or 413, 421, 605 P2d 671 (1980) (emphasis in
Garcia); see also ORS 163.225(1) ("substantially" used only in
reference to intent).
The legislative history demonstrates that the draft-
ers were concerned with avoiding the all-encompassing kid-
napping definitions that existed in some states at the time
that they were drafting the new code. Specifically, the draft-
ers sought to avoid a kidnapping statute that would allow
prosecutors to charge kidnapping when the defendant had
moved or confined the victim only to effectuate another
crime. The legislative history also demonstrates that the
drafters considered, and ultimately rejected, the solutions of

Cite as 346 Or 463 	473
other jurisdictions. However, nowhere in the legislative his-
tory did the drafters explain the solution that they ultimately
adopted. We therefore return to the text of the statute, keep-
ing in mind the drafters' intent that the kidnapping statute
not apply to situations where the movement or confinement
of the victim is only incidental to the commission of an inde-
pendent crime.
The drafters' wording of the intent element in ORS
163.225(1) makes it apparent that it was through that ele-
ment that they sought to avoid an over-inclusive definition of
second-degree kidnapping. As noted, the only place that the
drafters used the word "substantially" is in describing the
extent of interference with the victim's liberty that the defen-
dant must "inten[d]." And that is where this court has most
frequently referred to a "substantial distance" requirement.
That is, for a defendant to act with intent to interfere "sub-
stantially'' with another's personal liberty, that defendant
need not move the victim a substantial distance or confine
the victim for a substantial period of time, but rather "must
intend either to move the victim a 'substantial distance' or to
confine the victim for a 'substantial period of time.'" State v.
Wolleat, 338 Or 469, 4 75, 111 P3d 1131 (2005) (emphasis
added).
In contrast, the history and wording of the asporta-
tion element in ORS 163.225(1)(a) indicate that the drafters
did not intend to incorporate a "substantial distance" require-
ment into the statute when they used the phrase "from one
place to another." Indeed, as discussed above, the drafters
deleted references in earlier drafts to a "substantial distance"
requirement, which would have applied to the asportation
itself. Nonetheless, the wording of the statute indicates that
the legislature intended the asportation element to aid in
narrowing the definition of kidnapping, albeit not by requir-
ing that the defendant move the victim a "substantial dis-
tance" in every case. ORS 163.225(1)(a) requires that the
defendant move the victim "from one place to another"-not,
for instance, that the defendant simply "move" the victim or
move the victim "any distance." The legislature intended the
word "place" to have some meaning; that is, a kidnapping
does not occur by moving the victim any distance with intent

474 	State v. Walch
to interfere substantially with his or her personal liberty.
Rather, the movement must be such that it can be said that
the victim was moved from "one place" to "another [place]."
As this court has stated, "the 'place' in which some-
thing or someone may be found and from which that some-
thing or someone may be taken is situational and contex-
tual." Murray, 340 Or at 606. Defendant argues, largely
based on Murray, that, regardless of the context, one cannot
take another person "from one place to another" for purposes
of ORS 163.225(1)(a) without moving that person a "substan-
tial distance." As we discuss in greater detail below, although
a sentence in Murray provides some support for that argu-
ment, that sentence-and the conclusion defendant seeks to
draw from it-is not necessary to the result in Murray and is
inconsistent with the legislative history and with other cases
decided by this court. Defendant's argument would essen-
tially substitute the phrase "substantial distance"-a phrase
that the legislature considered and rejected-for the phrase
"from one place to another"-the phrase that the legislature
actually used. As this court state in Wolleat, "[b]y its terms,
the phrase ['from one place to another'] does not require that
a defendant take a victim a specific distance, nor does it
require that the distance be substantial." 338 Or at 4 73.
Indeed, we know from the legislative history that the
phrase "from one place to another" means something differ-
ent than "substantial distance." The first draft of the kidnap-
ping provisions considered by the Criminal Law Revision
Commission provided that a person would commit the crime
of second-degree kidnapping if, among other things, the per-
son moved the victim "from one place to another." See Crimi-
nal Law Revision Commission, Subcommittee No 2, Pre-
liminary Draft No 1, Art 12, § 1(1) (Oct 1968) (defining
"restrain"). 6 That draft also provided that second-degree kid-
napping would become first-degree kidnapping if, among
6 The first draft provided that a person committed the crime of second-degree
unlawful imprisonment if he "restrain[ed] another person." Criminal Law Revision
Commission, Subcommittee No 2, Preliminary Draft No 1, Art 12, § 4 (Oct 1968).
"Restrain" was defined as interfering with another's liberty by "moving him from
one place to another." Id. at § 1(1). Second-degree kidnapping was defined as
''abduct[ing] another person." Id. at§ 2(1). "Abduct" was defined as "restrain[ing) a
person with intent to prevent his liberation by fone of two means]." Id. at § 1(2).
Proof that a defendant moved a person "from one place to another" was thus

Cite as 346 Or 463 	475
other things, the person moved the victim "a substantial dis-
tance from the vicinity where he is found." Id. at § 3(1). The
drafters necessarily intended the two phrases to mean differ-
ent things and that a person need not move the victim a "sub-
stantial distance" to move the victim "from one place to
another." Moreover, because moving the victim a "substan-
tial distance," rather than "from one place to another," ele-
vated the crime to first-degree kidnapping, it is apparent that
the drafters intended the phrase "substantial distance" to
require a greater amount or degree of movement than the
phrase "from one place to another."
The distance that the victim is moved is one impor-
tant consideration in determining whether the victim was
moved "from one place to another"-i.e., moving the victim a
"substantial distance" more likely will entail moving the vic-
tim "from one place to another"-but that is not the only var-
iable that we must consider. In enacting the kidnapping stat-
ute, the drafters' primary concern was protecting the victim's
personal liberty or "freedom of movement." Wolleat, 338 Or at
4 7 4; see also ORS 163.225(1) (kidnapping entails acting "with
intent to interfere substantially with another's personal
liberty"). Thus, another important factor in determining
whether the defendant moved the victim "from one place to
another'' is whether the movement served to limit the vic-
tim's 	freedom 	of movement 	and 	increase 	the 	victim's
isolation.
In Murray, for example, the defendant, in the course
of stealing the victim's car, pushed the victim from the
driver's seat to the passenger seat. The victim immediately
opened the passenger side door and exited the car; the defen-
dant closed the passenger door and drove away. 340 Or at
601-02. This court determined that the evidence had failed to
show that the "defendant tried to keep [the victim] in the car.
Instead, [the] defendant drove the car away." Id. at 606
(emphasis in original). Indeed, the defendant pushed the vic-
tim to the passenger seat, where she could escape more easily
by opening the passenger door. Far from serving to isolate
the victim or limit her freedom of movement, the defendant's
--- -------···---···
necessary to prove both second-degree kidnapping and the lesser crime of second-
degree unlawful imprisonment.

State v. Walch
movement of the victim in that case indirectly led to the vic-
tim's freedom. That fact, coupled with the fact that the defen-
dant had moved the victim only a few feet, led this court to
conclude that the defendant had not moved the victim "from
one place to another."
Here, in contrast, the "situation[ ]" and "context[ ],"
Murray, 340 Or at 606, surrounding the incident provide sup-
port for the jury's determination that defendant took the vic-
tim "from one place to another." The victim was originally in
the driveway, an open area from which she might have run
away or been seen by the people inside the house. Defendant
attacked the victim and fought with her, moving her approx-
imately 15 feet. Defendant then picked the victim up and
shoved her into a car, a location (and an object) intended to
quickly move people a distance of some miles. Further, defen-
dant not only forced the victim into a car, but into the trunk of
a car, a place in which, as the Court of Appeals accurately
stated, "a human being could be put for almost no innocent
purpose." Walch, 218 Or App at 92. Because the context is
such that defendant moved the victim from one place (the
open driveway) to a qualitatively different, more mobile and
isolated place (the trunk of a car), we conclude that the aspor-
tation element of the kidnapping statute has been satisfied.
Moreover, the 15 feet that defendant moved the victim is sev-
eral times the distance involved in Murray, regardless of
whether that distance is considered quantitatively "substan-
tial."7 We need not decide whether defendant moved the vic-
tim a "substantial distance," because the kidnapping statutes
do not require that the victim be moved a "substantial dis-
tance" or, indeed, any specific distance. The distance of the
movement is simply one factor in determining whether the
defendant, with the intent to interfere substantially with the
7 The Court of Appeals stated that movement can only be "from one place to
another" if the movement is "substantial"-a statement that the Court of Appeals
based on its understanding of Murray. Walch, 218 Or App at 91. As discussed
above, the asportation requirement of ORS 163.225(1)(a) does not even use the
word "substantial," and the drafters considered, but rejected, the use in that sec-
tion of the term "substantial distance." This court's cases, including Garcia,
Wolleat, and Murray, mention "substantial distance" as one aspect of proving the
required intent to "substantially interfere," but they do not state-with the excep-
tion of one sentence in Mu.rray-that "substantial movement" is the only way to
prove that a defendant moved a victim from one place to another.

Cite as 346 Or 463 (2009) 	477
victim's personal liberty, took the victim "from one place to
another." 8
For the foregoing reasons, we conclude that the evi-
dence was sufficient to permit a reasonable jury to find that
defendant had moved the victim "from one place to another"
for purposes of ORS 163.225(1)(a). As noted, defendant does
not argue that the evidence was insufficient to permit a
reasonable jury to find the three other elements of first-
degree kidnapping, including that defendant "inten[ded] to
interfere substantially with another's personal liberty." The
trial court therefore properly denied defendant's motion for a
judgment of acquittal.
The dissent protests that we are overruling relevant
precedent, asserting that several of this court's prior cases
"equat[e] * * * the requirement that movement be 'from one
place to another' under ORS 163.225(1)(a), when it occurs in
the context of a separate substantive offense, with movement
of a 'substantial distance.'" 346 Or at 488 (Gillette, J., dis-
senting). Not surprisingly, we disagree. The analysis above of
the phrase "from one place to another" and of this court's
cases interpreting that phrase is consistent with, and would
lead to the same results in, the three cases that the dissent
mentions, Garcia, Wolleat, and Murray. Moreover, it is con-
sistent with this court's unequivocal statement in Wolleat
that 	the 	term 	"from 	one 	place 	to 	another" 	in 	ORS
163.225(1)(a) "does not require that a defendant take a victim
a specific distance, nor does it require that the distance be
substantial.'' 338 Or at 4 73.
The only support for the dissent's position that this
court's cases "equate" "from one place to another" with "sub-
stantial distance" is one sentence in Murray. However, as we
will demonstrate, that sentence is not essential to the result
in Murray, and, more importantly, it is inconsistent with
other cases and with the legislative history of the kidnapping
8 Because we have determined that defendant moved the victim from "one
place to another" by moving her from the open driveway into the enclosed trunk, we
need not address the state's argument that the distance that the victim voluntarily
moved pursuant to defendant's ruse-from inside the house to the driveway-
should be included in the distance that defendant "took" the victim.

478 	State v. Walch
statutes. As noted, in Murray, the defendant shoved the vic-
tim from the driver's seat of the victim's car into the passen-
ger seat, where the victim opened the door and got out, as the
defendant said "get out, bitch." Murray, 340 Or at 602. This
court examined whether that evidence would permit a jury to
find the asportation element of second-degree kidnapping-
that the defendant had "[t]ake[n] the [victim] from one place
to another." ORS 163.225(1)(a). As we already have seen, the
court discussed the meaning of the words in the statute-
particularly the word "place"-and quoted extensively from
the discussion of the legislative history of the kidnapping
statutes in Garcia. Murray, 340 Or at 603-06. The court
noted that the meaning of "place" was "situational and con-
textual" and that it was, "among other things, a function of
the object to be moved, as well as a function of the area in
which the movement occurs." Id. at 606. The court then
applied the law that it had reviewed to the facts of the case:
"But however one may wish to characterize the confron-
tation between defendant and [the victim] in the car, no evi-
dence indicates that defendant tried to keep [the victim] in
the car. Instead, defendant drove the car away. That means
that, even if one were to find some sort of asportation in the
events in question, it was only 'incidental'-as that word
was used in Garcia-to defendant's theft of the car and,
therefore, not the kind of conduct that the legislature
intended to permit to serve as the basis for a separate kid-
napping charge. Put differently, defendant did not 'take'
[the victim] anywhere or, even if he did, the distance that
[the victim] moved was not 'substantial,' i.e., was not 'from
one place to another.' See Garcia, 288 Or at 421 (defendant
guilty of kidnapping only if, during commission of another
substantive offense, he took victim 'substantial distance')."
Id. at 606-07 (emphasis in original).
Obviously, the first three sentences in the paragraph
just quoted-indeed, the first three and a half sentences-are
sufficient to reach the result that the court reached in
Murray and are entirely consistent with the analysis above: a
kidnapping requires a "tak[ing]" of the victim "from one place
to another" that is not "only 'incidental' "to another crime. In
Murray, there was no evidence that the defendant took the
victim from one place to another. He simply shoved her

Cite as 346 Or 463 	479
across the seat and, after she opened the door and got out,
shut the door and drove off without her. The defendant's
physical contact with the victim was "only incidental" to the
other crimes that he committed: robbery, assault, and unau-
thorized use of a motor vehicle. Here, in contrast, defendant
assaulted and robbed the victim. He also moved the victim
about 15 feet to the car, lifted her off the ground, placed her in
the trunk, and tried to shut the trunk lid. Our conclusion that
the foregoing conduct meets the asportation requirement of
ORS 163.225(1)(a) is consistent with the words of that stat-
ute and with this court's cases.
The dissent nevertheless focuses on the last sen-
tence in the paragraph from Murray, quoted above, which
states that, even if the defendant in that case had "take[n]"
the victim anywhere, "the distance that [the victim] moved
was not 'substantial,' i.e., was not 'from one place to another.' "
Murray, 340 Or at 606. As support for that proposition,
Murray provides, and the dissent quotes, the following cita-
tion: "See Garcia, 288 Or at 421 (defendant guilty of kidnap-
ping only if, 	during commission of another substantive
offense, he took victim 'substantial distance')." 9 See 346 Or at
488 (Gillette, J., dissenting) (quoting Murray, 340 Or at 606-
07).
Other than the material just quoted, nothing in any
Oregon case or statute even suggests that the requirement in
ORS 163.225(1)(a) that the defendant "take" the victim "from
one place to another" requires that the defendant move the
victim a "substantial distance." On the contrary, as the leg-
islative history discussed above makes clear, the Criminal
Law Revision Commission considered and rejected a pro-
posal to require, for a kidnapping conviction, that the defen-
dant move the victim a "substantial distance.'' And the
Commission considered, but did not adopt, a different pro-
posal that would have used movement "from one place to
9 This court's opinion in Murray did not cite or explain the directly contrary
statement in Wolleat that the asportation requirement of ORS 163.225(1)(a) "does
not require that a defendant take a victim a specific distance, nor does it require
that the distance be substantial." State u. Wolleat, 338 Or 469, 473, 111P3d1131
(2005).

Statev.
another'' to describe second-degree kidnapping and move-
ment of a "substantial distance" to describe first-degree kid-
napping. That undisputed background demonstrates that,
whatever those two different phrases mean, they cannot
mean the same thing. The dissent's position is untenable.
One might fairly ask, then, where the sentence from
Murray, 340 Or at 606, and the parenthetical in Murray
describing Garcia, 288 Or at 421, originated. The answer is
found in this court's editing, in Murray, of the extensive quo-
tation from Garcia that discusses the legislative history of
the kidnapping statutes. In Garcia, the court reviewed the
Criminal Law Revision Commission's efforts to define kid-
napping in a way that would prevent a separate kidnapping
conviction "where the detention or asportation of the victim is
merely incidental to the accomplishment of another crime,
particularly that of robbery or rape." Garcia, 288 Or at 420.
That review quoted subcommittee minutes, statutes from
other states, different drafts of statutes, and statements by
committee staff and witnesses. For the dissent, the critical
sentence from Garcia is the following, which this court
quoted in Murray:
"The drafting technique utilized to accomplish the leg-
islative purpose is manifested in the definition of the crime
of kidnapping. The Commission reasoned that even though
the malefactor's conduct offended the statutory injunctions
[against some other substantive offense], he would be guilty
of kidnapping also if in committing [that other offense] he
took the victim a 'substantial distance' or held the victim for
'a substantial period of time.'"
Murray, 340 Or at 605-06 (quoting Garcia, 288 Or at 420-21)
(internal quotation marks omitted; emphasis and bracketed
material in Murray).
Unfortunately, in excerpting that quotation from
Garcia, Murray omitted the following, which appears in
Garcia directly after the sentence just quoted and is part of
the same paragraph:
"See n. 3, supra. As finally enacted[,] the 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'

Cite as 346 Or 463 (2009) 	481
with the victim's personal liberty to make the malefactor
guilty of kidnapping if he commits an act proscribed by ORS
163.225."
Garcia, 	288 	Or 	at 	421 	(footnote 	omitted; 	emphasis 	in
Garcia).10
Murray's omission of that text in its quote from
Garcia leaves the inaccurate impression that, to be guilty of
kidnapping under ORS 163.225, the perpetrator must move
the victim a "substantial distance" or hold the victim for a
"substantial 	period of time." And 	from 	that inaccurate
impression, Murray draws the similarly inaccurate conclu-
sion quoted previously. The inaccuracy becomes apparent
when one examines the omitted part of the paragraph from
Garcia. The citation-"See n. 3, supra"-is to a long quota-
tion from the minutes of a subcommittee of the Commission
regarding a discussion of the first draft of the kidnapping
statute, see Garcia, 288 Or at 417 n 3, and shows that the
court in Garcia (in the sentence emphasized in Murray) was
not describing any Oregon statute, but rather a discussion
draft presented to the Commission. The references in that
first draft to "substantial distance" and "substantial period of
time" were deleted in later drafts and do not appear in the
kidnapping statutes as enacted. The sentence in Garcia fol-
lowing that citation reinforces the conclusion that Garcia cor-
rectly reached that the kidnapping statute as enacted con-
trasted with the earlier drafts: "As finally enacted[,] the law
does not even require that there actually be a substantial
interference with the victim's personal liberty * * *."Garcia,
288 Or at 421.
The dissent also suggests that, because we discuss
the fact that defendant forcibly put the victim in the trunk of
the car, we are somehow conflating the asportation element
of the kidnapping statute, ORS 163.225(1)(a), with the alter-
native confinement element of ORS 163.225(1)(b). Under
that provision, a person with the requisite intent is guilty of
10 To its credit, when the dissent quotes Garcia, it includes this sentence,
unlike the majority opinion in Murray. 346 Or at 486 (Gillette, J., dissenting). Nev-
ertheless, the dissent omits the citation that, as stated in the text, shows that the
sentence preceding the citation-which both Murray and the dissent emphasize
and rely upon-does not describe the kidnapping statute as enacted.

482 	State v. Walch
second-degree kidnapping if the person "[s]ecretly confines
the [victim] in a place where the [victim] is not likely to be
found." (Kidnapping by confinement was not charged here.)
The dissent misses the point. The car trunk is relevant, in our
view, not because it is a "secret" place where the victim might
be confined and not be likely to be found, but because it was
"another" "place" to which defendant took the victim after he
attacked her outside the house. As this court stated in
Murray, 340 Or at 606, determination of the "place" from
which and the other "place" to which the victim must be
"taken" to meet the asporation requirement is "situational
and contextual." The fact that defendant moved the victim to
a car and, indeed, a car trunk-rather than simply to a spot
on the driveway 15 feet from where he first attacked her-
supports our interpretation of the statute, as well as the jury
verdict here. 11
We agree with the dissent that the legislature took
pains to enact a kidnapping statute that would limit "the sep-
arate crime of kidnapping" to situations "where the detention
or asportation is not merely incidental to the commission of
the underlying crime." Garcia, 288 Or at 420 (emphasis in
original). However, the dissent-and the sentence in Murray
discussed above-is incorrect in stating that the legislature
intended to achieve that result by requiring that the deten-
tion be for a "substantial period of time" or that the asporta-
tion be movement of a "substantial distance." 12 Rather, as the
legislative history and this court's decision in Garcia show,
the legislature intended to achieve that result by requiring
proof that the perpetrator had the "intent to interfere sub-
stantially" with the victim's personal liberty. Garcia, 288 Or
11 Of course, the asportation and confinement elements are not mutually exclu-
sive. A defendant might well take a person from one place to another (with the req-
uisite intent) and secretly confine the person where the person is not likely to be
found. Because confinement was not charged here, however, there is no need to
consider whether the evidence in this case would have supported a conviction
under that prong of the kidnapping statute.
'" Similarly, the citation in Murray to Garcia, which includes a parenthetical
statement purporting to describe Garcia as holding (or stating) that one is guilty of
kidnapping "only if, during commission of another substantive offense, he took
victim 'substantial distance,'" Murray, 340 Or at 606-07, is not an accurate
description of Garcia. The dissent also perpetuates that error. See 346 Or at 488
(Gillette, J., dissenting) (quoting Murray, 340 Or at 606-07).

Cite as 346 Or 463 	483
at 421. Defendant does not argue that that requirement was
not met here.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
GILLETTE, J., dissenting.
The lead opinion today holds that moving a robbery
victim 15 feet during a mutual affray and attempting (unsuc-
cessfully) to force the victim into the open trunk of a car con-
stitutes "tak[ing] the person from one place to another,"
a 	required element of the kidnapping crime defined at
ORS 163.225(1)(a). In doing so, the opinion cites (but then
sub silentio overrules) relevant precedent. As I hope to show,
that is not a defensible course for this court to follow but,
even if it were the correct analysis, it answers the wrong
question.
The problem here arises out of defendant's attempt to
steal money from the victim. Defendant and his co-conspirators
planned to lure the victim onto an unlit lawn and driveway
area adjacent to a house, ostensibly to have the victim look at
alleged damage to a car that one of the co-conspirators had
parked in the driveway. Defendant would then accost the vic-
tim and take money that he believed she was carrying.
So much for planning. As it turned out, when defen-
dant accosted the victim in the vicinity of the car, she put up
a spirited physical resistance. The struggle moved the parties
to the rear of the car, a distance of no more than 15 feet.
Defendant, when his other efforts to subdue the victim failed,
finally tried to throw her into the trunk of the car. He did not
succeed: She continued to fight, and the trunk was already
partially filled. Defendant finally let go of the victim and
instructed her to go into the house and bring back her money.
The "kidnapping''-if any there was-was over.
The crux of the lead opinion's holding is this:
"[T]he 'situation' and 'context' * * * surrounding the inci-
dent provide support for the jury's determination that
defendant took the victim 'from one place to another.' The
victim was originally in the driveway, an open area from
which she might have run away or been seen by the people
inside the house. Defendant attacked the victim and fought

484 	State v. Walch
with her, moving her approximately 15 feet. Defendant
then picked the victim up and shoved her into a car, a loca-
tion (and an object) intended to quickly move people a dis-
tance of some miles. Further, defendant not only forced the
victim into a car, but into the trunk of a car, a place in
which, as the Court of Appeals accurately stated, 'a human
being could be put for almost no innocent purpose.' * * *
Because the context is such that defendant moved the vic-
tim from one place (the open driveway) to a qualitatively
different, more mobile and isolated place (the trunk of a
car), we conclude that the asportation element of the kid-
napping statute has been satisfied. Moreover, the 15 feet
that defendant moved the victim is several times the dis-
tance involved in [State v.] Murray[, 340 Or 599, 136 P3d 10
(2006)] regardless of whether that distance is considered
quantitatively 'substantial.' 7 We need not decide whether
defendant moved the victim a 'substantial distance' * * *.
" 7 	The Court of Appeals stated that movement can
only be 'from one place to another' if the movement is 'sub-
stantial'-a statement that the Court of Appeals based on
its understanding of Murray.*** As discussed above, the
asportation requirement of ORS 163.225(1)(a) does not
even use the word 'substantial,' and the drafters consid-
ered, but rejected, the use in that section of the term 'sub-
stantial distance.' This court's cases, including [State v.]
Garcia[, 288 Or 413, 605 P2d 671 (1980)], [State 	v.]
Wolleat[, 338 Or 469, 111 P3d 1131 (2005)], and Murray,
mention 'substantial distance' as one aspect of proving the
required intent to 'substantially interfere,' but they do not
state-with the exception of one sentence in Murray-that
'substantial movement' is the only way to prove that a
defendant moved a victim from one place to another."
346 Or at 476 (emphasis in original; citations omitted).
At bottom, the flaw in the lead opinion's analysis
(which 	concludes 	that 	the 	asportation element of ORS
163.225(1)(a) is met by what it insists on characterizing as a
"qualitative difference" between two different places, even if
the distance between the two places is not quantitatively sub-
stantial) is that it unwittingly conflates the asportation ele-
ment in ORS 163.225(1)(a) ("takes * * * from one place to
another) (emphasis added) with the secreting element of ORS
163.225(1)(b) ("[s]ecretly confines the person in a place where

Cite as 	485
the person is not likely to be found") (emphasis added). 1 That
is evident from the majority's focus on the movement of the
victim to the trunk of a car, which it describes as a "place"
where "a human being could be put for almost no innocent
purpose" and, again, as an "isolated place." The lead opinion
also refers-as if it mattered-to the assumed facts that the
driveway was "an open area from which [the victim] might
have run away or been seen by the people inside the house."
All those comments show that the lead opinion is preoccupied
by what it believes to be the defendant's efforts to hide the
victim from the view of others. But defendant was not
charged with secreting the victim2 and, therefore, the case
below and before this court is not about secreting. The court
should not overrule precedent interpreting the phrase "takes
* * * from one place to another" in ORS 163.225(l)(a) to
accommodate its obvious concern with the apparent attempt
to secrete the victim that the facts may suggest, but which
never was charged.
And make no mistake, the lead opinion is overruling
two of this court's previous cases: In Garcia, for example, the
court undertook an extensive analysis of the legislative his-
tory of the kidnapping statutes. The court there character-
ized the purpose of the drafters of the criminal code this way:
"The minutes reveal that the drafters intended to prevent
conviction and sentencing for kidnapping when the deten-
tion was merely incidental to a rape or robbery."
288 Or at 417 (emphasis added). The court then went on to
state:
"From this history we draw the inference that the
Commission, and subsequently the legislature, intended
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 accomplishment of
another crime * * *."
1 The majority quotes the entire statute at 346 Or at 468.
2 Count 3 of the indictment charged defendant with "unlawfully and know-
ingly, without consent or legal authority, tak[ing the victim] from one place to
another, with the intent to interfere substantially with [the victim's] personal lib-
erty***."

486 	State v. Walch
Id. at 420 (emphasis added). The Garcia court then directly
and unambiguously held the following:
"The drafting technique utilized to accomplish the leg-
islative purpose is manifested in the definition of the crime
of kidnapping. The Commission reasoned that even though
the malefactor's conduct offended the statutory injunctions
[against some other substantive offense], he would be guilty
of kidnapping also if in committing [that other offense] he
took the victim a 'substantial distance' or held the victim 'a
substantial period of time.'*** As finally enacted the 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 if he commits an act pro-
scribed by ORS 163.225. We find nothing in legislative
history to indicate the legislature intended by its adverb
'substantially' anything other than was intended by the
Commission in its use of the adjective 'substantial.'"
Id. at 420-21 (emphasis added).
As the foregoing recitation makes clear, the Garcia
court did not, as the lead opinion would have it, "mention
'substantial distance' as one aspect of proving the required
intent to 'substantially interfere.'" 346 Or at 476 n 	7.
Instead, the court recognized that the Commission (and the
legislature) intended to eliminate overcharging in cases
where movement of a victim was "merely incidental" to
crimes such as the central crime in this case-robbery. In
order to carry out that manifest intent, the Garcia court
imposed a 	requirement that, 	where the defendant was
attempting to commit some other substantive offense (in this
case, robbery), the evidence show that the defendant moved
the victim a "substantial distance." That requirement was
designed to assure that the acts that constituted the alleged
kidnapping were not "merely incidental" to another crime.
Proof that a victim of another offense was moved "a substan-
tial distance" from place to place thus was not about intent to
"substantially interfere"-commission of the other substan-
tive offense (rape, robbery, or the like) proved that. Instead,
the "substantial distance" proof was intended to show that

Cite as 346 Or
defendant's acts were not merely incidental to the other sub-
stantive offense but, instead, constituted the separate crime
of kidnapping. Garcia thus is flatly contrary to the lead opin-
ion, and the lead opinion's attempt to avoid Garcia ignores
history.
State v. Wolleat, the second case cited by the lead
opinion, is further support for my point. There, the defendant
assaulted his fiancee and, in the course of doing so, moved
her 15 or 20 feet from one room in their home to another. He
was convicted of fourth-degree assault and kidnapping. As
the case presented itself to this court, the only issue was the
sufficiency of the evidence to support the kidnapping convic-
tion. 338 Or at 471-72.
This court, in its analysis, thoroughly examined
Garcia and, for good measure, revisited the legislative his-
tory of ORS 163.225(1)(a). Wolleat, 338 Or at 474-78. The
court then summarized its research this way:
"One proposition emerges clearly from the legislative
history. Moving a victim from one room to another while
committing another crime does not constitute moving the
victim a substantial distance. Put differently, that move-
ment is not sufficient, by itself, to give rise to an intent to
interfere substantially with the victim's liberty to move
freely. See Garcia, 288 Or at 421 (explaining that concept of
'substantial distance' informs meaning of 'intent to inter-
fere substantially'). With that background in mind, we turn
to the facts of this case.
"The evidence, viewed in the light most favorable to the
state, shows that defendant moved the victim from the bed-
room to the living room, approximately 15 to 20 feet, while
he assaulted her. A reasonable juror could infer from that
evidence that defendant intended to move the victim the
distance that he did. However, an intent to do only that
would be insufficient to establish the mental element nec-
essary to prove kidnapping-a point that the legislative
history makes clear. In order to find defendant guilty of kid-
napping, a reasonable juror would have to be able to infer
that defendant intended either to move the victim a greater
distance than he did or to transport her to a place of con-
finement. As our recitation of the facts makes clear, no
reasonable juror could draw that inference from this record.

488 	State v. Walch
"We recognize, as the court did in Garcia, that in most
cases the question whether the defendant intended to inter-
fere substantially with the victim's liberty will present a
question of fact for the jury. Id. In some cases, however, the
intended movement will be so minimal that a court can say,
as a matter oflaw, that no reasonable juror could find that
the defendant had the statutorily required intent. This is
one of those cases, as the examples in the legislative history
make clear."
Wolleat, 338 Or at 478. The court then held that the evidence
against defendant was insufficient. Id. at 4 78-79.
Wolleat, in other words, recognized that moving a
victim a "substantial distance" was required in order to show
that 	defendant 	intended 	to 	commit 	kidnapping, 	i.e.,
intended-apart from and above the acts involved in the
other substantive offense-separately to interfere substan-
tially with the victim's liberty. Or, as the Wolleat court might
just as readily have said, "The record in this case shows only
movement that was merely incidental to the substantive
offense."
Finally, the lead opinion dismisses Murray. 346 Or
at 4 7 4. But that opinion cited all the foregoing parts of
Garcia with approval. Murray, 340 Or at 604-06. And, after
doing so, this court specifically agreed with Garcia's equating
of the requirement that movement be "from one place to
another" under ORS 163.225(l)(a), when it occurs in the con-
text of a separate substantive offense, with movement of a
"substantial distance." This court said:
"Put differently, defendant did not 'take' [the victim in that
case] anywhere or, even if he did, the distance that [the vic-
tim] moved was not 'substantial,' i.e., was not 'from one
place to another.' See Garcia, 228 Or at 421 (defendant
guilty of kidnapping only if, during commission of another
substantive offense, he took victim 'substantial distance')."
Murray, 340 Or at 606-07. Once again, and as a direct follow-
up to the analysis in Garcia and in Wolleat, the Murray deci-
sion stands authoritatively for the precise proposition that
the lead opinion now wishes to ignore.
In the long run, however, it may be that the "sub-
stantial distance" quarrel that I have with the lead opinion is

Cite as 346 Or 463 (2009) 	489
beside the point. The pivotal fact here is that the victim was
moved by the acts of her attacker during the course of an
assault 	and 	attempted 	robbery. 	Given 	that 	the 	victim
resisted, it is hard to imagine any such crime in which the
struggling parties would not move at least 15 feet. The move-
ment clearly and inescapably was "incidental to" those
crimes. We thus are not even called on to decide whether a
15-foot movement of a victim ever could be movement "from
one place to another," as that concept appears in ORS
163.225(1)(a). Even if it could be such under some circum-
stances, that circumstance is not presented here.
I do not mean to suggest that the majority's sense
that defendant's actions constituted some kind of kidnapping-
related crime is entirely misplaced. It may be possible that
defendant 	successfully 	could 	have 	been 	charged 	with
attempted kidnapping under ORS 163.225(1)(b) on the theory
that he attempted to "secretly confine" the victim in the
trunk of a car-"a place where [she was] not likely to be
found." But the prosecutor and the grand jury, not we, chose
to charge defendant with violating ORS 163.225(1)(a). It is
inappropriate for this court to adopt an entirely new reading
of ORS 163.225(1)(a) that saves the prosecution from the con-
sequences of its choice, simply because the place to which the
victim was moved evokes in some of us a feeling of secret
confinement. 3
I respectfully dissent.
De Muniz, C. J., and Durham, J.,join in this dissent-
ing opinion.
3 That is particularly true when, as here, the defendant is being held account-
able for a completed kidnapping under an asportation theory when, if he had been
properly charged under a secreting theory, he could at most have been found guilty
only of attempted kidnapping.