S057794, Opinion — State v. Sierra

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Argued and submitted November 8, decision of Court of Appeals affirmed in part
and reversed in part; judgment of circuit court reversed, and case remanded to
circuit court for further proceedings December 30, 2010, respondent on
review's petition for reconsideration allowed by opinion February 19, 2011
See 349 Or 604, 247 P3d 759 (2011)

STATE OF OREGON,
Respondent on Review,
v.
JOAQUIN SIERRA,
Petitioner on Review.
(TC 05C40355; CA A136120; SC S057794)
254 P3d 149

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# En Banc On review from the Court of Appeals .*

\* Appeal from Marion County Circuit Court, Terry Ann Leggert, Judge. 228
Or App 149, 206 P3d 1153 (2009).

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David Ferry, Deputy Public Defender, Salem, argued the
cause and filed the brief for petitioner on review. With him on
the brief was Peter Gartlan, Chief Defender.

Michael A. Casper, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
With him on the brief were John R. Kroger, Attorney
General, and Mary H. Williams, Solicitor General.

DURHAM, J.

The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for fur-
ther proceedings.

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## DURHAM, J.

This is a criminal case in which defendant chal-
lenges the sufficiency of the evidence to support his two con-
victions for the offense of kidnapping in the second degree,
ORS 163.225, and his single conviction for the offense of kid-
napping in the first degree, ORS 163.235.1 The Court of
Appeals affirmed defendant's convictions. State v. Sierra, 228
Or App 149, 206 P3d 1153 (2009). We allowed defendant's
petition for review and now affirm his conviction for first-
degree kidnapping but reverse his two convictions for second-
degree kidnapping.

Because defendant challenges the trial court's denial
of his motion for judgment of acquittal, we state the facts
underlying defendant's conviction in the light most favorable
to the state. See State v. Cervantes, 319 Or 121, 125, 873 P2d
316 (1994) (stating that rule).2 On the evening of January 14,
2005, defendant stopped at a truck stop to rest. The truck
stop included a fast-food restaurant and an adjoining conven-
ience store. The convenience store had front and rear
entrances. A "diesel desk" with a cash register (for trans-
actions involving diesel fuel) was located at the rear of the
store, and behind the diesel desk was a door to the manager's
office. Ordinarily, a cashier would stand behind the diesel
desk to accept payments from customers; in doing so, the
cashier would face the store's front entrance. The dimensions
of the area behind the diesel desk were seven and one-half
feet by eight feet. In order to access that area from the store's
rear entrance, a person ordinarily would walk around the
front of the diesel desk and up a short ramp to a raised plat-
form behind the diesel desk.

Derrick, an employee at the convenience store,
received a complaint from a customer that a man had an open

1 The 2003 version of ORS 163.225 and ORS 163.235 was in effect at the time
that defendant committed his offenses. Since 2003, the legislature has amended
other portions of ORS 163.225 and ORS 163.235. Those amendments are not rele-
vant to the disposition of this case.

2 Our "record on review *** consist[s] of the record before the Court of
Appeals." ORAP 9.20(5). In this case, that record does not contain the exhibits sub-
mitted by the parties at trial.

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container of alcohol in the men's restroom and had been mak-
ing inappropriate sexual comments. Derrick reported the
complaint to the shift manager, who directed Derrick to take
care of the problem. Derrick entered the men's restroom and
saw defendant, who was rinsing his face, as well as an open
bottle of beer nearby. Derrick informed defendant that alco-
hol was not allowed in the restroom, described the complaint
that he had received, and told defendant that he should
leave. Defendant became angry and confrontational, but
Derrick was able to back him out of the restroom without a
physical altercation. At that point, defendant left the store
area through the rear entrance. Derrick, the shift manager,
and another employee remained outside the rear entrance.

Defendant returned to his truck, where he thought
about the confrontation. After a few minutes, he decided to
return to the store in order to scare Derrick and secure an
apology. He grabbed a loaded crossbow and extra bolts (i.e.,
ammunition for the crossbow) from his truck, and walked
back to the store. When the shift manager and the other
employee saw defendant approach with the crossbow, they
ran into the store and locked themselves inside the man-
ager's office. Derrick remained outside. Defendant grabbed
Derrick's arm, pointed the crossbow at Derrick's head, and
took him inside the convenience store.

Defendant directed Derrick through the rear
entrance, around the front of the diesel desk, up the ramp,
and made Derrick kneel in the middle of the area behind the
diesel desk. Defendant stood in that area, a little to the front
of Derrick, in a position that would permit him to monitor the
front and rear entrances. Defendant yelled insults at
Derrick. He told Derrick that the accusations-i.e., Derrick's
relation of the customer's complaint-had hurt him. He
threatened to hurt Derrick and his children, and asked
Derrick how he would feel if defendant hurt Derrick's daugh-
ter in the same way that Derrick had hurt him. At some
point, he kicked Derrick in the face, causing a bloody nose.

Jeter and Mintun, two off-duty employees of a youth
correctional facility, had stopped at the truck stop to eat at
the adjoining restaurant. They heard a commotion and went
into the convenience store to see if they could assist. Jeter

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testified that he had encountered defendant in the men's
restroom earlier in the evening and that defendant had been
"pretty good" with him, but that, when Jeter entered the con-
venience store, defendant was "upset" and "out of control."
Mintun attempted to divert defendant's attention so that
Jeter would be able to restrain him. Defendant yelled at Jeter
and Mintun to leave. When they refused, defendant pointed
the crossbow at them. He directed them to come around the
front of the diesel desk and up the ramp to the area behind
the diesel desk, and then ordered them to kneel next to
Derrick. He then paced back and forth while yelling and
pointing his crossbow at all three individuals.

Three sheriff's deputies and an Oregon State Police
sergeant arrived at the scene. After some of the officers
peeked through the store's windows and saw defendant
behind the diesel desk pointing the crossbow at the victims,
the officers decided to enter the store to end the situation.
When the officers entered, announced their presence, and
ordered defendant to drop his weapon, defendant turned
towards them and pointed the crossbow in their direction.
One of the officers shot defendant.

An 11-count indictment charged defendant with
seven counts of unlawful use of a weapon, one count of fourth-
degree assault (of Derrick), one count of first-degree kidnap-
ping (of Derrick), and two counts of second-degree kidnap-
ping (of Jeter and Mintun). Each of the kidnapping counts
alleged that defendant "did unlawfully and knowingly, with-
out consent or legal authority, take [the victim] from one
place to another, with intent to interfere substantially with
the [victim's] personal liberty." The first-degree kidnapping
charge, which pertained to Derrick, alleged, in addition, that
defendant acted "with the purpose of terrorizing
Derrick."

The case proceeded to a jury trial. At the close of the
state's case, defendant moved for a judgment of acquittal on
the kidnapping charges. As to the first-degree kidnapping
charge, defendant argued that the evidence was insufficient
to show that he had acted with the purpose of "terrorizing"
Derrick. As to the second-degree kidnapping charges, defen-
dant argued that the state had not introduced sufficient

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evidence to prove that he had moved Jeter and Mintun "from
one place to another" or that he had intended to "interfere
substantially with [their] liberty." The trial court denied the
motions for judgment of acquittal, and the jury convicted
defendant of all three kidnapping charges.3 On defendant's
appeal, the Court of Appeals affirmed in a written opinion.
State v. Sierra, 228 Or App 149, 206 P3d 1153 (2009). Defen-
dant then petitioned for review, challenging the sufficiency of
the evidence as to each of his three kidnapping convictions.

We begin by addressing the parties' arguments con-
cerning defendant's second-degree kidnapping convictions
for his actions taken against Jeter and Mintun. ORS
163.225(1), which defines the offense of kidnapping in the
second degree, provides:

"(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."

ORS 163.225(1)(a) and (b) thus provide alternative ways for
the state to prove the act element of kidnapping. As noted
above, in this case, by alleging in the indictment that defen-
dant did "take [the victims] from one place to another," the
state elected to proceed on the asportation theory under ORS
163.225(1)(a). Thus, to establish kidnapping here, the state
had to prove that defendant (1) "without consent or legal
authority," (2) took the victims "from one place to another,"
(3) "with intent to interfere substantially" with the victims'
"personal liberty." On review, defendant renews his argu-
ment that the state presented insufficient evidence as to the
latter two elements. We first consider whether, viewed in the
light most favorable to the state, the evidence was sufficient

3 The jury also convicted defendant of assault in the fourth degree and five
counts of unlawful use of a weapon. The jury acquitted defendant of one unlawful
use of a weapon charge. The state had dismissed another one of the unlawful use of
a weapon charges prior to trial.

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to prove the act element of kidnapping, namely, that defen-
dant took Jeter and Mintun "from one place to another."

The state and defendant offer competing under-
standings as to the meaning of the act element of kidnapping
by asportation. Defendant proposes that that element is sat-
isfied when a defendant takes the victim either a substantial
distance or to a qualitatively different place. Defendant sub-
mits that, as a general rule, movement within a single struc-
ture (such as a home, building, or car), including room-to-
room movement, will not be movement to a qualitatively
different place in terms of interference with a victim's liberty.
The state appears to share defendant's view that the begin-
ning place and ending place must be qualitatively different,
but argues that place-to-place movement requires only proof
that "the defendant moved the victim to a place that served to
limit the victim's freedom of movement and increased the vic-
tim's isolation." The parties both acknowledge, as they must,
that, in order to prove that defendant took a victim "from one
place to another," the state is not required to prove that
defendant took the victim a substantial distance. See State v.
Walch, 346 Or 463, 473, 213 P3d 1201 (2009) (holding that
legislature did not intend to incorporate a "substantial dis-
tance" requirement into ORS 163.225(1)(a) when it used the
phrase "from one place to another").

Our inquiry does not begin with a clean slate. This
court has considered the meaning of the phrase "from one
place to another" twice before, in State v. Murray, 340 Or 599,
136 P3d 10 (2006) and Walch, 346 Or 463. Those decisions
provide guidance here. In Murray, the court explained that
the meaning of the phrase "from one place to another"
reduces to an inquiry into the meaning of the word "place:"

"The question of what is included in the concept of 'tak-
ing' a person 'from one place to another' is, at bottom, an
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

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one is to define the term 'place' for the purposes of ORS
163.225(1)(a)."

340 Or at 603.

Admittedly, pinpointing the legislature's intended
meaning of the word "place" with precision has proved some-
what vexing. The criminal code does not define the term, and
the dictionary definition provides little assistance. Id. at 603-
04 (explaining that the most relevant dictionary definition of
"place"-"an indefinite region or expanse"-does little to clar-
ify the meaning of the term as used in the kidnapping stat-
utes); see also Walch, 346 Or at 470-73 (considering legisla-
tive history). However, in Murray, 340 Or at 606, the court
explained that, as used in the kidnapping statutes,

"the 'place' in which something or someone may be found
and from which that something or someone may be taken is
situational and contextual. It is, among other things, a
function of the object to be moved, as well as a function of
the area in which the movement occurs."

In Walch, the court further clarified the significance of the
legislature's choice to use the word "place" within the phrase
"from one place to another:"

"[T]he legislature intended the asportation element to aid
in narrowing the definition of kidnapping ***. 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 mov-
ing the victim any distance with intent to interfere substan-
tially with his or her personal liberty. Rather, the move-
ment must be such that it can be said that the victim was
moved from 'one place' to 'another [place].'"

Walch, 346 Or at 473-74. Thus, under Murray and Walch, a
defendant can be said to have moved the victim from "one
place" to "another" only 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.

Moreover, Murray and Walch identify an additional
requirement contained within the act element: the taking

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must not be "only 'incidental' " to another crime. Murray, 340
Or at 606 ("incidental" asportation is "not the kind of conduct
that the legislature intended to permit to serve as the basis
for a separate kidnapping charge"); Walch, 346 Or at 478
("kidnapping requires a 'tak[ing]' of the victim 'from one place
to another' that is not ' "only incidental" ' to another crime.").
This court's previous decisions have recognized that the leg-
islature sought to prevent prosecutors from charging kidnap-
ping when a defendant's movement of a victim was only inci-
dental to another crime. See State v. Mejia, 348 Or 1, 7-8, 227
P3d 1139 (2010) (to that effect); Walch, 346 Or at 473 (same).
The primary means by which the legislature accomplished
that goal was through the narrowly crafted intent element
that requires the state to prove that the defendant intended
to interfere substantially with the victim's liberty. Id.
However, the legislature also crafted the asportation act
element of ORS 163.225(1)(a) with that same overarching
goal in mind. See id. ("[T]he wording of the [kidnapping]
statute indicates that the legislature intended the aspor-
tation element to aid in narrowing the definition of
kidnapping[.]”).

The rules outlined above explain the divergent out-
comes in Murray and Walch. In Murray, the victim was in the
driver's seat of her car when the defendant approached,
instructed her to "[g]et over" and forcibly pushed her from the
driver's seat to the passenger's seat. 340 Or at 601. From
there, the victim escaped by exiting through the passenger
side door; defendant then drove the car away. Id. at 602. The
court held that defendant's movement of the victim was
insufficient to satisfy the act element of kidnapping by aspor-
tation because, even assuming that the movement of the vic-
tim from driver's seat to passenger's seat was place-to-place
movement, that movement was incidental to defendant's
substantive crime:

"[E]ven if one were to find some sort of asportation in the
events in question, it was only 'incidental' * * * to defen-
dant'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 kidnapping charge."

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Id. at 606; see also Walch, 346 Or at 479 (explaining that, in
Murray, "[t]he defendant's physical contact with the victim
was 'only incidental' to the other crimes that he committed").

In contrast, Walch involved nonincidental move-
ment "from one place to another." The defendant in Walch
attacked the victim when she was standing in her driveway,
walking back toward an adjacent house. 346 Or at 466. He
began to strangle her and told her that he wanted her money.
Id. After the victim told defendant that her money was in the
house, defendant continued to drag the victim toward a car,
picked her up, and shoved her into the trunk of the car. After
the victim resisted, defendant eventually let her return to the
house. Id. On those facts, the court held that the defendant
had taken the victim "from one place to another:"

"Defendant * * * picked the victim up and shoved her into a
car, a location (and an object) intended to quickly move peo-
ple a distance of some miles. * * * 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
asportation element of the kidnapping statute has been
satisfied."

Id. at 476.4 The court then concluded that defendant's move-
ment of the victim was not incidental to the other crimes:
After assaulting and robbing the victim, defendant "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." Id. at 479 (emphasis in original). In our view, Murray
and Walch are consistent: The former involved only inciden-
tal movement of the victim, while the latter involved non-
incidental movement of the victim between two qualitatively
different places.5

4 Although the ultimate determination of whether a victim has been taken
from "one place to another" is situational and contextual, we note that one aspect
of a vehicle that distinguishes it from a number of other locations is its mobile
nature. See Walch, 346 Or at 476 (describing a car as "a location (and an object)
intended to quickly move people a distance of some miles"). The mobile nature of a
vehicle was an important aspect of our holding in Walch that the movement there
was from "one place to another."

5 We emphasize that our review of the facts in Murray, Walch, and other
related cases is not intended to announce specific factual criteria that necessarily

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We pause before turning to the facts of this case in
order to dispel any misconceptions that may persist as to the
meaning the phrase "from one place to another" as it is used
in the kidnapping statutes. First, because the wording
selected by the legislature requires movement from one place
to a second, distinct place, it generally is problematic to sug-
gest or conclude that minimal movement that effectuates lit-
tle change in the victim's position-such as, for example,
movement requiring one to step to the side, or move from a
standing position to a sitting or lying position-is movement
"from one place to another." Second, because the asportation
element is defined in terms of relative movement, the degree
of force or threat used by a defendant to effectuate the vic-
tim's movement ordinarily is not relevant to a determination
whether a victim has been "taken from one place to another."
Third, the degree by which the movement in question
increases defendant's control over the victim, or isolates the
victim from the view of others, is relevant to the determina-
tion whether a defendant has moved a victim "from one place
to another" only to the extent that those considerations tend
to demonstrate the qualitative difference between where the
victim started ("from one place") and where the victim was as
a result of the defendant's conduct ("another [place]"). See
Walch, 346 Or at 482 (When defendant forced victim from a
driveway outside her home into a car trunk, existence of car
trunk is relevant "not because it is a 'secret' place * * * but
because it was " 'another' 'place' to which defendant took the
victim[.]").6 However, because neither isolation nor control of
the victim is required by the wording of ORS 163.225(1)(a),
those considerations cannot be substituted for the ultimate
inquiry whether the victim was moved from one place to
another.

will dictate the result in other cases. Fact-matching can be a misleading enterprise.
Instead, we take our guidance from the legislature's specified criteria, that is,
whether a defendant has moved a victim "from one place to another," considered in
light of the situation and context in which that issue arises.

" As we stated in Walch, 346 Or at 482 n 11, we again caution here that "the
asportation and confinement elements are not mutually exclusive." Because, in
this case, the state charged asportation and not confinement, there is no need to
consider whether the evidence in this case would have supported a conviction
under the confinement prong of ORS 163.225(1).

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With the above framework in mind, we turn to
defendant's conduct towards Jeter and Mintun. Jeter and
Mintun entered the store of their free will in an attempt to
distract or disarm defendant. Defendant's encounter with the
pair did not commence until they were already inside the con-
venience store. Viewing the evidence in the light most favor-
able to the state, the record indicates that defendant com-
pelled Minton and Jeter to move from some location near the
front of the convenience store to the diesel desk at the rear of
the store, around the front of the diesel desk counter, and up
the ramp to the area behind the diesel desk, a seven-and-one-
half foot by eight foot bounded area behind a cashier's desk.
He then ordered them to kneel.

We decline to adopt defendant's proposed rule that
movement of a victim within a single structure will never be
place-to-place movement. However, the "situation[ ]" and
"context[ ]" of this case do not allow a rational factfinder to
conclude that defendant's movement of Jeter and Mintun
was from "one place to another." The beginning location
(inside a convenience store, near the front door) and the end-
ing location (inside the same room, behind a diesel counter
near the back of the room) of defendant's contact with Jeter
and Mintun are not "qualitatively different" locations, such
that the movement was the sort of change in position from
one place to another contemplated by the drafters of the kid-
napping statute. Despite the existence of brief physical move-
ments, Jeter and Mintun ended up in the same room of the
same building that they had entered. Defendant positioned
Jeter and Mintun across the room and behind a desk in a
kneeling position. In this context, however, those are changes
of position and posture in the same general place, not a move-
ment of victims to a qualitatively different place.

The facts adduced here also demonstrate that the
movement of Jeter and Mintun was incidental to that is,
inherent in, or a chance or minor consequence of-defendant's

7 Pursuant to ORS 166.220(1), which sets out the offense of unlawful use of a
weapon, the indictment charged that defendant "did unlawfully attempt to use
unlawfully against [Mintun and Jeter] a crossbow, a dangerous weapon." The jury
found defendant guilty of those charges.

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independent crimes of unlawful use of a weapon? or menac-
ing8 against those victims. In light of Jeter and Mintun's
refusal to leave, defendant's movement of those two to the
area behind the diesel desk was part of defendant's position-
ing of his victims in a single location so that he could point his
crossbow at all three of them simultaneously. Like the defen-
dant's conduct in Murray, defendant's conduct in this
instance was "not the kind of conduct that the legislature
intended to permit to serve as the basis for a separate kid-
napping charge."

The foregoing discussion leads us to conclude that
the state introduced insufficient evidence to prove the two
charges of kidnapping in the second degree.9 As a result, the
trial court erred in denying defendant's motion for judgment
of acquittal on those charges. We reverse the trial court's
judgment as to those two charges and remand the case to the
trial court so that that court can enter a judgment of acquittal
as to those charges.

Next, we turn to the sufficiency of the evidence as to
defendant's first-degree kidnapping conviction for his actions
involving Derrick. A defendant commits the offense of kid-
napping in the first degree if the state proves the elements
required for kidnapping in the second degree10 and also
proves that the defendant acted with additional malevolent
purpose specified in ORS 163.235. In part, ORS 163.235
provides:

8 ORS 163.190(1) provides:

"A person commits the crime of menacing if by word or conduct the person
intentionally attempts to place another person in fear of imminent serious
physical injury."

The state did not charge defendant with menacing in this case.

9 On review, the parties also dispute whether the state presented sufficient
evidence for a rational trier of fact to conclude that the state had proved the intent
element-i.e., defendant's "intent to interfere substantially" with Jeter and
Mintun's personal liberty. Because we reverse defendant's second-degree kidnap-
ping convictions on the ground that the state presented insufficient evidence as to
the act element, we need not address the sufficiency of the evidence as to the intent
element.

10 Defendant concedes that the state provided sufficient evidence for a trier of
fact to have convicted defendant of second-degree kidnapping of Derrick. In other
words, he does not dispute that he moved Derrick from one place to another with-
out Derrick's consent with the intent to interfere substantially with Derrick's per-
sonal liberty.

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"(1) A person commits the crime of kidnapping in the
first degree if the person violates ORS 163.225 with any of
the following purposes:

"(d) To terrorize the victim or another person * * * [.]"
With respect to defendant's conviction for kidnapping in the
first degree, the only issue on review is whether the state pre-
sented sufficient evidence for a rational trier of fact to con-
clude that defendant kidnapped Derrick with the purpose of
"terroriz[ing]" him.

The legislature enacted ORS 163.235 as part of the
Oregon Criminal Code of 1971, which was a comprehensive
revision of Oregon's substantive criminal law. Criminal Law
Revision Commission Proposed Oregon Criminal Code, Final
Draft and Report § 99 (July 1970). Although the word "terror-
ize" is not defined by statute, the commentary accompanying
the Criminal Law Revision Commission's final draft indi-
cates that the legislature intended to adopt the word's plain
meaning:

" 'Terrorize' is defined by Webster's as meaning 'to fill
with terror; to coerce, maintain power, etc. by inducing ter-
ror.' The dictionary defines terror as meaning 'intense fear
\* the quality of causing dread; terribleness.' Webster's
New World Dictionary (Coll ed 1968). The verb form of the
word seems particularly apt for use in a kidnapping statute;
and the American Law Institute indicates that the term
was employed in the Model Penal Code to cover 'vengeful or
sadistic abductions accompanied by threats of torture,
death or other severely frightening experience.' [Commentary,
Tent. Draft no. 11 at 18 (1960)]. Section 99 adopts this view
and is concerned with the intent or purpose of the actor and
not with the subjective effect of his actions upon either the
person kidnapped or other persons."

Id. (ellipsis and brackets in original).

Defendant does not appear to dispute the applicable
definition of "terrorize." Rather, he disputes whether the
foregoing definition applies to his conduct in this case. He
concedes that the evidence may support a conclusion that he
kidnapped Derrick with the purpose of frightening him,

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embarrassing him, or instilling some fear in him, but he con-
tends that the evidence is insufficient to support the conclu-
sion that he acted with the "different and greater" purpose of
terrorizing Derrick.

We disagree. In our view, the state presented suffi-
cient evidence for a rational juror to conclude that defendant
kidnapped Derrick with the purpose of terrorizing him, i.e.,
with the purpose of filling Derrick with intense fear or dread.
Viewing the evidence in the light most favorable to the state,
the evidence establishes that defendant returned to the store
with the express purpose of using a crossbow in order to
coerce an apology from Derrick. Defendant maintained
power over Derrick by pointing a crossbow at his head at
close range and forcing him to kneel in a small, bounded area.
Defendant yelled at Derrick, called him names, threatened to
harm Derrick and Derrick's daughter, and kicked Derrick in
the head. From that conduct, a rational juror could have
inferred that defendant's purpose in kidnapping Derrick was
to take revenge upon Derrick for Derrick's earlier comments
and actions by causing Derrick to undergo a severely fright-
ening experience. Accordingly, we affirm defendant's convic-
tion for kidnapping in the first-degree.

To summarize, we reverse defendant's two convic-
tions for kidnapping in the second degree and affirm defen-
dant's conviction for kidnapping in the first degree.

The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for fur-
ther proceedings.