Jason Chambers, in a jealous rage, drove his automobile into a car in which his former lover was a passenger and that was owned and driven by Kelly, her current lover. The prosecutor relied on a theory of a threatened battery rather than an attempted battery and charged Chambers with assault with a dangerous weapon. Kelly testified that he saw a car coming down the street that “aimed for my car and hit it.” The other two passengers testified that they had been unaware of the approaching automobile. Was Chambers guilty under the prosecution’s theory of attempted battery? Could Chambers be prosecuted for assault with a dangerous weapon? See Commonwealth v. Chambers, 781 N.E.2d 37 (Mass. App. Ct. 2003).

Commonwealth v. Chambers, 781 N.E.2d 27 (Mass.App. 2003).

Threatened battery requires proof that the defendant has engaged in objectively menacing conduct with the intent of causing apprehension of immediate bodily harm on the part of the target. Objectively menacing" conduct means that the target reasonably would feel immediate menace. The defense urges that the occupants of the car that Chambers struck did not apprehend the attack at all, and, hence, there was no threatened battery. Language in recent threatened battery decisions hints at, but does not squarely answer, whether the object of a threatened battery must be aware of the threatening act. Conduct might be of a kind that objectively would make a reasonable person apprehend imminent bodily injury, but what if that person were unaware of the menace?

    One could imagine, for example, a hypothetical bat being waved menacingly behind the back of the object of menace, with only a percipient bystander to tell the tale. There is much appeal to the proposition that a crime against a person is no less a crime because the victim is unaware that the offense has occurred. The good order of society has been violated, and the offender ought to be punished. As the instant case demonstrates, measuring what is menacing conduct is more likely to be successful than determining the awareness of the object of menace. Other cases and authorities, however, when dealing specifically with threatened battery, seem to indicate that apprehension by the target of menacing conduct is an essential ingredient of the offense of threatened battery. Such is also the view of the drafters of the Model Penal Code. Section 211.1(1)(c) of the code defines as a variant of the crime of assault "attempts by physical menace to put another in fear of imminent serious bodily injury"( text taken directly from judgment of the court). 
     There were four occupants in the automobile that the defendant Chambers rammed into; hence the four counts of assault with a dangerous weapon. Of those four, Kelly McCormack was a front seat passenger. Chambers had been McCormack's former love interest and, indeed, they had a child together. She had left Chambers for Brian Kelly, who was the driver and owner of the car that Chambers hit. That collision occurred at about 2:30 A.M. McCormack testified that she had noticed her car, with Chambers at the wheel, driving at the car in which she was a passenger. She saw the attacking vehicle hit side to side and felt the jolt. Occupants of the Kelly vehicle could leave it only by the passenger side. McCormack's account of the accident varied between examination and cross-examination. She had consumed more than a little strong drink before the collision. Nevertheless, in the light most favorable to the Commonwealth, her testimony warranted a finding that she apprehended the menace of Chambers driving an automobile at her.
     Kelly, the driver, testified that a car coming down the street "aimed for my car and hit it." That testimony is susceptible of a reasonable inference that Kelly was aware of an imminent collision, although he did not recognize Chambers—whom he knew—as the assailant until he left his car after the crash. At the time of the collision, Kelly thought that a drunk driver had hit him. We think Kelly's awareness that a car in motion was aiming at him satisfies the awareness criterion, even though Kelly did not know who was at the wheel of the aggressor vehicle until after the crash. We do not understand that the target of an assault must know the identity of the assailant, who might, after all, be masked.
     As to the other two passengers, Nicole Robinson testified, "We got in the car. Everything was fine. And then another car hit us and backed up on the car. And we got out to see what happened. We thought it was a drunk driver." We do not think her testimony can be read to mean that she had a sense of an imminent collision. The fourth occupant, Rafael DeJesus, falls in the same category as Robinson. He noticed nothing before: "Then the car hit. . . . There was just a big boom. Then I thought it was a drunk driver."
     Chambers, therefore, was entitled to a required finding of not guilty as to the counts alleging an assault with a dangerous weapon on Robinson and DeJesus to the extent those counts were based on a theory of threatened battery (text taken directly from judgment of the court).

         Twelve-year-old Amanda and 13-year-old Carolyn were in the kitchen of Amanda’s house when an intruder, Greg Goodhue, entered through the back door. He ordered Carolyn into the adjoining bathroom, threw her onto the floor, jumped on top of her and attempted to place his hands down her pants. Amanda followed the two into the bathroom and began throwing objects at the defendant. Goodhue then got up and pushed Amanda away. He then shoved Carolyn back onto the floor, ripped her blouse and unbuttoned and unzipped her pants and began to remove them. The back door slammed, and Goodhue got off Carolyn and fled. The entire incident lasted from three to five minutes. Goodhue was convicted of attempted sexual assault, burglary, and kidnapping. He was sentenced to five to ten years for attempted sexual assault, five to ten years for burglary, and ten to fifteen years for kidnapping, all of which were to be served concurrently. Was Carolyn kidnapped? See State v. Goodhue, 833 A.2d 861 (Vt. 2003).

State v. Goodhue, 833 A.2d 861 (Vt. 2003).

Under early kidnapping statutes, many state and federal courts followed what has been described as the traditional rule in American jurisprudence, holding that any transportation, that is, carrying away of the victim, no matter how short in distance or duration, was sufficient to establish the crime of kidnapping. . . . Today however, a majority of courts have moved away from the traditional approach and now hold that kidnapping statutes do not apply to unlawful confinements or movements incidental to the commission of other felonies. This departure was prompted by a recognition that a literal reading of the kidnapping statutes can lead to overzealous enforcement, with the result that "persons who have committed such substantive crimes as robbery or assault—which inherently involve the temporary detention or seizure of the victim—will suffer the far greater penalties prescribed by the kidnapping statutes." 

      In determining whether a separate kidnapping conviction was supportable, courts have considered various factors, including whether evidence of the seizure, detention, or movement was or was not inherent in the nature of the underlying crimes; whether the crime was facilitated by the confinement; whether the movement or confinement prevented the victim from summoning assistance; whether the movement or detention lessened the defendant's risk of detection; and whether the movement or detention created a significant danger or increased the victim's risk of harm.
     One is confined for a substantial period if that "confinement is criminally significant in the sense of being more than merely incidental to the underlying crime." Whether a confinement is sufficiently substantial to support a kidnapping conviction depends upon a "qualitative" analysis of the factors surrounding the confinement. Such factors relevant to this analysis include: (1) whether the detention significantly increases the dangerousness or undesirability of the defendant's behavior, (2) whether the detention occurred during the commission of a separate offense, and (3) whether the detention created a significant danger to the victim independent of that posed by the separate offense . . . .

         Thus the test we have adopted to determine whether confinements or movements involved are such that kidnapping may also be charged and prosecuted when an offense separate from kidnapping has occurred asks whether the confinement, movement, or detention was merely incidental to the accompanying felony or whether it was significant enough, in and of itself, to warrant independent prosecution.
     The Legislature promulgated a major revision of the Vermont Criminal Code and, as part of that effort, rewrote the statutory definition of kidnapping. The current law defining kidnapping generally parallels the Model Penal Code definition of kidnapping and requires that the restraint must be accomplished for one of four specified purposes. Our Legislature deviated from the Code and added an additional purpose: that the person knowingly restrain another person with the intent to sexually assault the restrained person. Moreover, as part of the criminal code revision, the penalty for kidnapping was increased to a maximum of life imprisonment for all kidnappings.
     In the Model Penal Code, kidnapping is defined by the requirement that the restraint must be accomplished for one of four purposes: to hold the victim for ransom or reward, or as a shield or hostage; to facilitate the commission of a felony or flight thereafter; to inflict bodily injury on or terrorize the victim; or to interfere with the performance of any governmental or political function.
     In this case, defendant was charged with knowingly restraining another person with the intent to sexually assault the restrained person or place the restrained person or a third person in fear that any person will be sexually assaulted." The State relied on the definition of "restrain," ‘restrain' means to restrict substantially the movement of another person without the person's consent or other lawful authority by confining the restrained person for a substantial period either in the place where the restriction commences or in a place to which the person has been moved." The confinement, movement, or detention used to facilitate a sexual assault, however, must be criminally significant in and of itself and not merely incidental to the sexual assault. That is, there must be a separate kidnapping. The restraint must have increased the dangerousness of the defendant's actions, further isolated the victim, and increased her vulnerability.
     Evaluating defendant's actions in this light, the Vermont Supreme Court concluded that the movement of Carolyn from the kitchen to the bathroom floor did not exceed the confinement or removal inherent in the commission of the crime of sexual assault nor did it increase the danger to the victim over and above the danger presented by the attempted sexual assault. Defendant's actions cannot, therefore, provide the basis for a kidnapping conviction. Defendant's conviction and sentence for attempted sexual assault are affirmed. Defendant's conviction and sentence for kidnapping are vacated (text taken directly from judgment of the court)

         On the night in question, the defendant had sexual intercourse with the complainant by impersonating her longtime boyfriend, his brother. According to the complainant, while she was asleep alone in the bedroom she shared with her boyfriend, the defendant entered the room, and she awoke. In the dark room, the complainant assumed that the defendant was her boy friend returning home from work, and addressed him by her

         boyfriend's name. He got into the bed and had intercourse with her. The complainant was "not fully awake" at the time of penetration. During the intercourse, she believed that the man was her boyfriend, and had she known it was the defendant, she "would have never consented." Was Sulliveres guilty of rape? Sulliveres v. Commonwealth, 449 Mass. 112 (Mass. 2007).                      

         DID SULLIVERES RAPE HIS BROTHER’S GIRLFRIEND BY FRAUD AND TRICKERY?

       Sulliveres v. Commonwealth, 449 MASS. 112 (Mass. 2007)

Opinion by: Cowin, J.

Issue

         In Commonwealth v. Goldenberg, 338 Mass. 377 (1959), we concluded that it is not rape when consent to sexual intercourse is obtained through fraud or deceit. In determining that G. L. c. 265, s. 22, required this result by its definition of rape as sexual intercourse compelled "by force and against [the] will" of the victim, we stated that "[f]raud cannot be allowed to supply the place of the force which the statute makes mandatory." In the present case, the Commonwealth asks us to overrule the Goldenberg decision and hold that misrepresentations can in fact substitute for the requisite force.         

Facts

          The crime of rape is defined in G. L. c. 265, s. 22 (b): "Whoever has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury, shall be punished . . . ." This definition has changed over time, but the requirement that the act be "by force and against [the] will" of the victim has remained constant for two hundred years.

In Commonwealth v. Goldenberg, we considered, as a matter of first impression, whether rape could be committed by fraud. The Goldenberg case involved a woman who had gone to the defendant, a physiotherapist, to procure an abortion. The defendant told her that, as part of the procedure, he "had to have intercourse" with her and that it would "help it some way." He then proceeded to have intercourse with her. We noted that "it could not be found beyond a reasonable doubt that the intercourse was without her consent," and that the evidence "negatived the use of force." Thus, the only way the defendant could have been convicted was if his fraudulent representation that the intercourse was medically necessary could both invalidate the consent and supply the requisite "force." We concluded, however, that "[f]raud cannot be allowed to supply the place of the force which the statute makes mandatory," and cited with approval a Michigan case, Don Moran v. People, 25 Mich. 356 (1872), which on "facts strikingly similar" had found no rape to have been committed.                   
     We turn now to the facts of the present case, viewed in the light most favorable to the Commonwealth. On the night in question, the defendant had sexual intercourse with the complainant by impersonating her longtime boy friend, his brother. According to the complainant, while she was asleep alone in the bedroom she shared with her boy friend, the defendant entered the room, and she awoke. In the dark room, the complainant assumed that the defendant was her boy friend returning home from work, and addressed him by her boy friend's name. He got into the bed and had intercourse with her. The complainant was "not fully awake" at the time of penetration. During the intercourse, she believed that the man was her boy friend, and had she known it was the defendant, she "would have never consented."
      The defendant was indicted for rape and tried before a jury in the Superior Court. At trial, the main issue was whether the complainant knew at the time the identity of the person with whom she was having sex. The defense was that the sex was fully consensual. The defendant told an investigating police officer that the complainant had come to him while he was asleep in another room and had invited him to her bedroom to have sex with her. The Commonwealth argued that the defendant had procured the complainant's consent to sex fraudulently by impersonating her boy friend.   
    The defendant moved for a required finding of not guilty at the close of the Commonwealth's evidence, but the motion was denied. The jury were unable to reach a verdict, and the judge declared a mistrial. The defendant then moved to dismiss the indictment, arguing that the Commonwealth had failed to present sufficient evidence to support a guilty verdict at trial, and that any subsequent retrial would thus violate common-law principles of double jeopardy. When this motion was denied, the defendant sought relief from a single justice of this court who referred the case to the full bench. 

Reasoning

         In determining whether the Commonwealth presented sufficient evidence to support a finding of guilt so as to permit a subsequent retrial without violating double jeopardy principles, we apply the familiar standard: "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis in original).                   
In Commonwealth v. Goldenberg, we considered, as a matter of first impression, whether rape could be committed by fraud. The Goldenberg case involved a woman who had gone to the defendant, a physiotherapist, to procure an abortion. The defendant told her that, as part of the procedure, he "had to have intercourse" with her and that it would "help it some way." He then proceeded to have intercourse with her. We noted that "it could not be found beyond a reasonable doubt that the intercourse was without her consent," and that the evidence "negatived the use of force." Thus, the only way the defendant could have been convicted was if his fraudulent representation that the intercourse was medically necessary could both invalidate the consent and supply the requisite "force." We concluded, however, that "[f]raud cannot be allowed to supply the place of the force which the statute makes mandatory," and cited with approval a Michigan case, Don Moran v. People, 25 Mich. 356 (1872), which on "facts strikingly similar" had found no rape to have been committed.                 
     Taking the evidence in the light most favorable to the Commonwealth, we assume that the defendant fraudulently induced the complainant to have intercourse. However, as noted above, the rule of Commonwealth v. Goldenberg is that intercourse where consent is achieved by fraud does not constitute rape. That rule compels the conclusion that there was no evidence of rape in this case, and we decline to overrule the Goldenberg decision.  
     The rule of the Goldenberg decision. For all purposes relevant to this case, the crime of rape is defined by statute as nonconsensual intercourse achieved "by force." The Commonwealth, advancing the same argument that was rejected in the Goldenberg decision, contends that the defendant's fraud should be allowed to satisfy the requirement of force. In requesting that we overrule the Goldenberg case, the Commonwealth asks us to read "force" out of the statute in cases involving misrepresentation as to identity. Yet we have never suggested that force is not an element of the crime, or that "by force" is synonymous with lack of consent. Because "[n]o portion of the statutory language may be deemed superfluous," we are not free, any more than we were in the Goldenberg case, to adopt the Commonwealth's proposed interpretation.          
    We assume that, when it enacts legislation, the Legislature is not only aware of existing statutes, but is also aware of the prior state of the law as explicated by the decisions of this court. Thus, we find it significant that the Legislature has not seen fit to overrule the Goldenberg decision in forty-eight years, during which the rape statute was amended three times, scholarship and attitudes regarding rape changed considerably, and the Goldenberg decision received criticism from at least one member of this court. The Legislature is free to amend the rape statute or create a new substantive offense to encompass the conduct at issue, as many other States have done. However, where the Legislature has chosen not to do so, "[i]t is not for this court . . . to rewrite the clear intention expressed by the statute."  
    Whether the Goldenberg decision is distinguishable. Relying principally on United States v. Booker, 25 M.J. 114, (C.M.A. 1987), the Commonwealth attempts to distinguish the Goldenberg decision on the ground that it involved "fraud in the inducement" while the present case is one of "fraud in the factum." We find this argument unpersuasive. Assuming that there is a distinction that is meaningful in the context of sexual intercourse, we examine the concepts involved. The term "fraud in the factum" typically refers to "the rare case when there has been fraud as to the essential nature of [a legal] instrument or an essential element of it." Fraud in the inducement," by contrast, occurs "when a misrepresentation leads another to enter into a transaction with a false impression of the risks, duties, or obligations involved," but there is no fraud as to the essential nature of the transaction. In the context of rape, by analogy, "fraud in the factum" must mean that the victim is defrauded as to the nature of the act performed, rather than the reason for doing it. Compare Boro v. Superior Court, 163 Cal. App. 3d 1224(1985) (fraud in factum where victim consents to doctor's penetration of her with medical instrument but he then penetrates her with his penis), with State v. Bolsinger, 709 N.W.2d 560, 564 (Iowa 2006) (fraud in inducement where defendant touched victims' genitals on pretext of medical examination because they were "touched in exactly the manner represented to them"). In the present case, there is no claim that the complainant did not know she was consenting to a sex act; rather, just as in the Goldenberg case, her consent was induced by fraud as to the circumstances surrounding the act. Thus, the present case involves "fraud in the inducement," as did Goldenberg, and is squarely controlled by that decision.    

Holding

         Fraudulently obtaining consent to sexual intercourse does not constitute rape as defined in our statute. Accordingly, the defendant's motion for a required finding of not guilty should have been granted and a subsequent retrial is barred on double jeopardy grounds.

Questions for Discussion       

1. Explain the difference between fraud in inducement and fraud in factum.       

2. Is the Massachusetts Supreme Judicial Court correct in arguing that its decision in Sulliveres is dictated by the precedent established in Goldenberg? 

3. How would you decide Sulliveres? For a decision that reaches a different result, see People v. Leal, 180 Cal.App.4th 782 (Cal. App. 2009)

Scott McLaughlin and Beverly Guenther lived together. Their relationship was marked by conflict that was sufficiently serious that on various occasions M. Guenther obtained a restraining order against Mr. McLaughlin. Following their breakup, McLaughlin was arrested and charged with burglarizing Guenther’s home. On October 27, 2003, He claimed that he was reclaiming items that he left at her house. As a result, Guenther obtained an order of protection against McLaughlin. McLaughlin responded by waiting for Guenther to get off work and was found to have murdered and raped her in the parking lot. He unsuccessfully moved for a judgment of acquittal on the forcible rape charge on the ground that there was no evidence that he had sex with Ms. Guenther while she was alive. See State v. McLaughlin, 265 S.W.3d 257 (Mo. 2008).

State v. McLaughlin, 265 S.W.3d 257 (Missouri, 2008)

Denvir Smith, J.

         Scott A. McLaughlin was tried and found guilty of first-degree murder. In addition, Mr. McLaughlin argues that the trial court erred in finding there was sufficient evidence to support a submission that he forcibly raped the victim.             
     The evidence at trial, considered in the light most favorable to the jury's verdict, shows that Scott McLaughlin and Beverly Guenther began a tempestuous relationship shortly after they met in 2002. For several months, the two lived together, but their cohabitation was marked by break-ups that were sometimes so serious that Ms. Guenther would obtain a restraining order against Mr. McLaughlin. In the spring of 2003, they ended their amorous relationship, but continued to see each other on social occasions. Throughout their relationship, Mr. McLaughlin frequently called and visited Ms. Guenther at her place of employment.
    On October 27, 2003, Mr. McLaughlin was arrested and charged with burglarizing Ms. Guenther's home. He claimed that he was reclaiming things that he left at her house after they stopped living together. He was arraigned on the burglary charge on November 18, 2003. Based on this incident, Ms. Guenther sought and received an order of protection against Mr. McLaughlin. On November 20, 2003, while the protective order was still in effect, he drove to Ms. Guenther's place of employment and waited for her to get off of work. When she emerged from the office, he spoke with her as she walked towards her truck.
      The state presented expert testimony that the blood spatters and other physical evidence in the parking lot and truck suggested that Mr. McLaughlin at that point forced Ms. Guenther to the ground and raped her, then stabbed her repeatedly, causing a fan-shaped blood stain on the parking lot, and then dragged her body to his car and placed it in the hatchback. Mr. McLaughlin then drove to the river with the intention of disposing of her body. He tried to deposit her body in the river, but ran into some thick underbrush along the bank and left her corpse there. He then returned to sleep in his parked car because one of the tires had become flat when he stopped to dispose of the body.
     The next day, Mr. McLaughlin cleaned out the inside of his car with bleach. As the day went on, he became increasingly hyperactive and nervous. Eventually, Mr. McLaughlin asked a friend to take him to a hospital in St. Charles so that he could get some medication for his mental disorder. The police were informed that Mr. McLaughlin was going to be at the hospital, and he was arrested when he arrived.
    Mr. McLaughlin was charged with first-degree murder, forcible rape, and two counts of armed criminal action (one based on the murder, the other based on the rape). After admission of all the evidence in the guilt phase, Mr. McLaughlin moved for a judgment of acquittal on the forcible rape charge on the ground that there was no evidence that he had sex with Ms. Guenther while she was alive. The trial court overruled the motion, stating that even if the sexual intercourse occurred at the riverbank after Ms. Guenther was dead, "it's still a part of the continuous series of events that's part of the rape."

       Missouri's forcible rape statute, like that of most jurisdictions, does not expressly address whether the victim must be alive at the time of penetration. It simply states that a "person commits the crime of forcible rape if such person has sexual intercourse with another person by the use of forcible compulsion. . . ." Mr. McLaughlin argued to the trial court that one cannot act with forcible compulsion against a person who is already dead; therefore, in order to prove the 'forcible compulsion' element of forcible rape, the state must show beyond a reasonable doubt that the victim was alive at the culmination of the rape.
      Because Mr. McLaughlin claimed (contrary to the state's evidence based on the blood stains in the parking lot) that he had raped the victim after he stabbed her to death, he argued that the court should have directed a verdict in his favor on the rape count, as his crime at most constituted necrophilia or desecration of a corpse. Alternatively, he argued that the court should have instructed the jury that if it had reasonable doubt that the victim was alive when Mr. McLaughlin had sexual intercourse with her, it must find him not guilty of forcible rape.
     The trial court rejected Mr. McLaughlin's arguments, stating, "I don't know that she actually has to be alive at the actual time—time of the sexual penetration. When it says forcible compulsion, that is all part of rape. So if a man, in the process of raping a woman, is killing her, that's the forcible compulsion." It then ruled that even if the actual assault occurred later, after Ms. Guenther was dead, it began with the stabbing so "it's still a part of the continuous series of events that's part of the rape." On appeal, Mr. McLaughlin claims this was reversible error. This Court disagrees.
     As have the majority of jurisdictions to address this issue, this Court adopts the "ongoing criminal assault" rule. Under that rule, where the forcible compulsion that leads to the rape begins before the death of the victim, the defendant is guilty of rape even if the jury believes defendant killed the victim before penetration or before the sexual assault was concluded. As the Tennessee Supreme Court noted in adopting the majority rule, there are important policy reasons why the death of the victim during the assault should not preclude a conviction of rape:

              We are likewise unable to embrace the notion that the fortuitous circumstance, for the rapist, that death may have preceded penetration by an instant, negates commission of the crime of aggravated rape and reduces it to a relatively minor offense associated with erotic attraction to dead bodies. Reading the "live only" requirement into the statute encourages rapists to kill their victims, in our opinion.

              The Georgia Supreme Court similarly reasoned that the perpetrator should not be effectively rewarded for using force sufficient to cause death, stating:

         If the element of force is satisfied where the defendant has used less than deadly force to overcome the victim's resistance so as to allow him to have carnal knowledge of the victim, the element of force is surely no less satisfied when the defendant has used deadly force to accomplish his aim. Lipham v. State, 364 S.E.2d 840 (Ga. 1988).

            Lipham analogized to when an armed robber first kills his victim and then takes his money. Even though the victim is dead when the robbery is consummated, and thereafter can no longer be "forced" to do anything, it is still armed robbery because the theft continues and is able to be accomplished due to the deadly earlier force. So, too, in a forcible rape prosecution, where defendant has rendered the victim "permanently unconscious" as a part of a course of continuous conduct that resulted in the rape, the state has met its burden of proving forcible compulsion.

      The Utah Supreme Court similarly recognized that the single, continuous assault rule provides the appropriate standard where the defendant killed the victim after beginning the forcible compulsion that led to the rape. As the concurring opinion stated:

         I find it difficult to believe that the legislature, in enacting the corpse desecration statute, intended it to apply, to the exclusion of other statutes relating to sexual assault, in cases where a defendant's single, continuous assault on a victim results in the victim's death and in sexual contact.

                 This Court agrees and adopts the majority rule that considers the entirety of a defendant's conduct from the beginning of the assault through completion of the sexual contact. It is rape where defendant both kills and sexually assaults a victim in a single, continuous act, or in a series of closely related acts, and where, as a part of the course of conduct, defendant uses forcible compulsion against the victim, even if portions of the rape, including penetration, occur once the victim already has been killed.
     In so holding, this Court expressly rejects Mr. McLaughlin's request that Missouri adopt the minority "bright-line" rule that a rape victim must be alive at the moment of penetration.⁸ These courts reason that rape must be accomplished against a person's will, and once one is dead one has no will which can be overborne. People v. Sellers, 203 Cal.App.3d 1042 (Cal.App. 1988). While true, where the perpetrator uses force to gain control over the victim, defendant has used force to accomplish the rape just as much as if the force occurred later in the sexual contact. Perhaps that is why two of the decisions that adopted the minority rule were later effectively overruled when those states' legislatures adopted the continuous conduct rule by statute. ⁹
     For the reasons set out above, the judgment is affirmed.

         Stephen F. (Child) appeals his convictions for two counts of criminal sexual penetration and argues that the trial court improperly excluded evidence of the alleged victim’s past sexual activities. Child claimed that this evidence would have demonstrated her motive to fabricate. Under sections 30-9-11 through 30-9-15 of New Mexico Statutes, evidence of the victim’s past sexual conduct and opinion evidence of the victim’s past sexual conduct or of reputation for past sexual conduct shall not be admitted unless, and only to the extent, the court finds that the evidence is material to the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

             Child (age fifteen) and the alleged victim (B.G., age sixteen) engaged in sexual intercourse. Child, B.G., and B.G.’s brother had been watching movies in B.G.’s bedroom. Child had been a friend of B.G.’s brother and family for nine years and usually slept on the couch in the living room when he spent the night. B.G. testified that after Child had headed for bed in the living room, he returned to her room and forced her to engage in sexual conduct, including oral, vaginal, and anal intercourse. The morning after the incident, B.G. told her mother that Child had raped her. Child was convicted of two counts of criminal sexual penetration. Child contended that the intercourse was consensual and claimed that B.G. lied because she feared that she would be punished by her religious parents. B.G. previously had been punished by her parents after having had consensual sexual relations with her then boyfriend. B.G. reportedly had told Child that her mother “was really upset . . . [about my having engaged in sex with my boyfriend;] she said that it was going to take her a long time to trust me again, . . . about three or four months[,] . . . and I wasn’t allowed to go out on dates with guys.” Child’s theory was that B.G. was motivated to fabricate the claim of rape because she feared the punishment and disapproval of her parents, devout Christians who “don’t believe in sex before marriage.” The State of New Mexico opposed Child’s motion to permit the cross-examination of the complaining witness in regard to her prior sexual conduct with her boyfriend on the grounds that this was intended to portray the complaining witness as an individual who is likely to engage in sexual activity outside of marriage. According to the appellate court, there are five areas to consider in making a decision on this issue: (1) whether there is a clear showing that complainant committed the prior acts; (2) whether the circumstances of the prior acts closely resemble those of the present case; (3) whether the prior acts are clearly relevant to a material issue, such as identity, intent, or bias; (4) whether the evidence is necessary to the defendant’s case; [and] (5) whether the probative value of the evidence outweighs its prejudicial effect.

             As a judge, would you permit Child to cross-examine the complaining witness in regard to her sexual conduct with her boyfriend? See State v. Stephen F., 152 P.3d 842 (N.M. Ct. App. 2007).

        

          State v. Stephen F., 152 P.3d 842 (N.M.App.2007).

         The primary issue in this case is resolved by Johnson. In that case, our Supreme Court explained that rape shield laws were enacted in reaction to the historic use of evidence of an alleged victim's prior sexual conduct "on the reasoning that someone who had consented previously would have been more likely to have consented on the particular occasion at issue." In general, rape shield laws restrict the use of evidence of an alleged victim's prior sexual conduct to establish consent because such evidence "is only marginally, if at all, probative of consent." In shielding alleged victims from exposing their sexual history, rape shield laws protect alleged victims from harassment and encourage them to report and testify. Rape shield laws are not absolute bars to the admission of an alleged victim's sexual history. The purpose of rape shield laws is "not to remove relevant evidence from the jury's consideration." To assist the trial court in exercising its discretion, Johnson adopted, as a possible framework for analysis, a five-factor test. Id. If a defendant makes a sufficient showing under the test, he establishes a constitutional right to present evidence that would otherwise be excluded under the rape shield law. The five-part test consists of the following factors:

         (1) whether there is a clear showing that complainant committed the prior acts; (2) whether the circumstances of the prior acts closely resemble those of the present case; (3) whether the prior acts are clearly relevant to a material issue, such as identity, intent, or bias; (4) whether the evidence is necessary to the defendant's case; [and] (5) whether the probative value of the evidence outweighs its prejudicial effect.

              We apply the five factors to the present case. With respect to the first factor, the fact that B.G. engaged in the prior sexual act that Child seeks to introduce is uncontested. B.G. spoke openly about her punishment for having sex with her boyfriend in a statement she gave to the defense. Thus, the first factor is met.
      The second factor, whether the circumstances of the prior acts closely resemble those of the present case, does not apply in this case. We acknowledge the State's argument that the prior acts of sex between B.G. and her then boyfriend were "intimate consensual acts," as compared to the "force and coercion" allegedly used by Child in this case. However, Child intended to show that B.G.'s prior sexual conduct and the resulting punishment created a motivation to lie, as opposed to showing any pattern or series consistent with prior sexual conduct. Child was not relying on any of the details of B.G.'s prior acts to analogize factual similarities between B.G.'s prior sexual experiences and her experience with Child. Consequently, we conclude that under the circumstances of this case, the second factor is unhelpful in evaluating the admissibility of the evidence. It is not necessary that each factor be satisfied. Our Supreme Court in Johnson adopted the five factors merely as a framework for analysis and did not intend for the factors to be determinative. In considering the third factor, whether the prior acts are clearly relevant to a material issue, such as identity, intent, or bias, the inquiry is whether the evidence Child sought to admit tended to prove B.G.'s motivation to fabricate. Child asked the trial court to admit evidence that B.G. had previously had sex, that B.G.'s mother had been "really upset" upon learning of her daughter's sexual conduct, and that B.G.'s mother had forbidden B.G. from dating and punished her for three or four months. The State primarily contends that these facts do not support the theory that B.G. had a motive to lie. The State argues that Child would have to show facts tending to prove "that [B.G's] mother knew or even suspected that her daughter had once again engaged in . . . consensual sex with [Child]" in order for Child to establish that B.G. had a motive to fabricate a claim of rape. The State also argues that "[b]ased on [B.G.'s] prior experience, had the sex with [Child] been consensual, [B.G.] would have had every reason not to tell her parents[, and w]ith no disclosure to the parents there is no fear of punishment and consequently no motive to fabricate." We conclude that Child has articulated a plausible theory of relevance for the evidence of B.G.'s prior sexual conduct. Child expressly articulated his theory to the trial court. Unlike the defendant in Johnson, Child specifically argued that he intended the evidence to show that B.G. had a motive to lie, and Child provided the trial court with a legitimate theory of relevance. Because Child articulated a theory of his defense that is supported by the evidence he sought to have admitted, he has demonstrated that B.G.'s prior acts of sexual conduct are relevant to a material issue.
      The fourth factor, whether the evidence is necessary to the defendant's case, is also met here. Because the entire case depended upon whether the jury believed Child's or B.G.'s version of the facts, evidence of B.G.'s motive to lie was the basis for Child's entire defense. Child explained that the evidence was crucial to his case because "jurors certainly are going to be asking themsel[ves, w]ell, why would she lie?" Child's defense was that B.G. consented. Denying Child's request to admit that B.G. had a strong motive to lie—fear of admonishment and punishment from her parents—essentially stripped Child of his only defense. We therefore conclude that the excluded evidence was not only necessary but crucial to Child's defense.
     Under the final factor, the trial court had to weigh the probative value of Child's being able to present his defense against the potential prejudice to the truth-finding process. At the hearing on the motion to admit the evidence, Child's counsel articulated the proper role of the trial court by stating that "the court is being asked to balance [Child's] confrontation rights." Instead of considering Child's constitutional rights, the trial court excluded the evidence by stating, "I do not address it in terms suggested by counsel, that is, under the confrontation aspect but rather under the measure of prejudice versus probative value." Because Child made the requisite particularized showing that the evidence was both highly probative of B.G.'s motive to lie and crucial to his defense, the trial court's failure to address the evidentiary issue "under the confrontation aspect" amounted to a misunderstanding of the balance the trial court must employ in these situations. A trial court must consider a defendant's confrontation rights in exercising its discretion to admit or exclude evidence of this nature. Because Child established relevancy and necessity and because the trial court failed to consider this, we hold that the trial court abused its discretion in excluding the evidence.
     A teenage girl's fear of punishment from her parents for engaging in premarital sex tends to prove her motivation to fabricate a claim of rape to cover up consensual sex. The trial court should allow Child to introduce this relevant evidence on retrial. Because of our holding, we need not address Child's alternative argument that the trial court erroneously denied his motion for a new trial.
      

          Norman was charged and convicted of one count of stalking of famed film director and producer, Steven Spielberg. He appealed on the grounds that the victim’s fear must be “contemporaneous with the stalker’s threats and harassment.”

            On June 23, 1997, Steven Spielberg left his residence and flew to Ireland, where he was joined by his wife and children. Six days later, Norman pushed the intercom button at the gate to Spielberg’s home. When a security guard came to the gate, Norman alleged that he worked for Spielberg’s partner, David Geffen, and demanded to see Spielberg. The guard told Norman to leave. Several days later, Norman drove a friend by Spielberg’s home, opened his “day planner,” and showed his friend a photograph of Spielberg’s head affixed to a photo of a naked male body. Norman later told his friend that he was going to climb over the wall at Spielberg’s residence and rape him.

             Roughly two weeks later, a security guard noticed Norman sitting behind the wheel of an automobile parked across the street from Spielberg’s residence and ordered Norman to leave. A few hours later, security guards responded to reports of a man in the backyards of homes adjacent to Spielberg’s residence. Norman fled and was apprehended. Norman reported that he was Spielberg’s “newly-adopted son” and later identified himself as “David Spielberg.” He was released from police custody.

             Norman returned to Spielberg’s residence on July 11th and backed his car into the driveway and “up to the gate as though he was trying to push it open, then drove away.” The police later found and detained Norman two blocks from Spielberg’s home. They searched him and found “handcuffs, a box cutter and duct tape on his person and, in his briefcase, two pairs of handcuffs, a day planner with photos of Spielberg, and. . . . razor blades.”

             On July 17, Norman was released from custody, and Spielberg’s lawyer contacted Spielberg in Ireland. The lawyer told Spielberg that Norman had the names of Spielberg’s wife and children and that Norman had a record of prior assaultive conduct and had suspicious material in his possession. Spielberg expressed concern and fear for himself and for his family. He authorized additional security measures at his house as well as at his mother’s Los Angeles residence, and for himself and his family in Ireland, and later in England.

             Norman confessed to the police that he had gone to Spielberg’s home on the night of July 11, intending to rape Spielberg and planned to tie up Spielberg’s wife and to force her to witness the rape. The police found that Norman possessed a notebook in which Norman wrote about “pursuing Mr. Spielberg to become one of his gay lovers,” a map of movie stars’ homes with Spielberg’s name and address marked in ink, articles about Spielberg, and documents listing the names and other information about various members of the Spielberg family. There was an article chronicling the stalking conduct of John Lennon’s killer. Is Norman guilty of stalking Steven Spielberg? See People v. Norman, 89 Cal. Rptr. 2d 806 (Cal. Ct. App. 1999).

People v. Norman 75 Cal.App.4th 1234 (Cal. App. 1999) 

Must a victim's fear be contemporaneous with the stalker's threats and harassment.     

Facts

         On June 23, 1997, Steven Spielberg (the victim) left his Pacific Palisades residence and flew to Ireland, where he was joined by his wife and children. On June 29, Norman drove a rented Jeep Cherokee to Spielberg's residence and pushed the intercom button at the gate. When Steven Lopez (a security guard) came to the gate, Norman said he worked for Spielberg's partner, David Geffen, and demanded to see Spielberg. Lopez knew the Spielbergs were out of town and told Norman to leave. Norman glared at Lopez, then left. Several days later, Norman drove a friend (Charles Markovich) by Spielberg's home, opened his "day planner" and showed Markovich a photograph of Spielberg's head affixed to a photo of a naked male body. On July 9, Norman told Markovich that he was going to climb over the wall at Spielberg's residence and rape him.                   
    About 1:25 a.m. on July 11, a Westec security officer (William Hunter) noticed a Land Rover parked in an odd position across the street from Spielberg's residence. Norman, who had replaced the rented Jeep with the rented Land Rover, was sitting behind the wheel. When Hunter rejected Norman's tale of engine problems and told Norman to leave, Norman complied. A few hours later (about 7:00 a.m.), Westec responded to several calls reporting a man in the backyards of the homes near Spielberg's residence. One of the officers (Manuel Hernandez) saw Norman, five-foot stick in hand, running over lawns and jumping fences. Hernandez gave chase and found Norman hiding under some bushes. When Norman raised his hands in response to a command from Hernandez, Norman dropped his day planner, revealing cut-out photographs of Spielberg. Norman told Hernandez he was "running away from the jackal" and also said he was Spielberg's "newly-adopted son." The police arrived and took custody of Norman. When he was interviewed by the police, Norman identified himself as "David Spielberg" and explained that he had been chased by "jackals," ferocious dogs owned by Spielberg. Norman was released about 10:30 a.m.
     About 5:10 p.m., Norman returned to Spielberg's residence and parked the Land Rover about 100 feet from Spielberg's driveway, directly in front of Lopez's car. About 20 minutes later, Lopez saw the Land Rover, recognized Norman, called another security officer and told him to call the police. As Lopez watched, Norman backed the Land Rover into the driveway and up to the gate as though he was trying to push it open, then drove away. When the police arrived, they found Norman's unoccupied car parked about two blocks from Spielberg's residence. The officers waited until Norman returned, detained him and searched him, finding handcuffs, a box cutter and duct tape on his person and, in his briefcase, two pairs of handcuffs, a day planner with photos of Spielberg, and parking tickets issued for both the Jeep and the Land Rover. Razor blades were found in the car. When asked what he was doing in the area, Norman said he had an appointment with Spielberg about a screenplay that involved one man raping another man, and that the handcuffs and tape were props. No screenplay was found in the car. Norman was placed on a 72-hour hold (which was later extended).                 
    On July 14, a security agent notified Spielberg's lawyer, Bruce Ramer, about the events of June 29 and July 11. On July 17, Norman was released from custody and Ramer was notified. Ramer, in turn, contacted Spielberg in Ireland and told him about Norman's conduct. Ramer also told Spielberg that Norman had the names of Spielberg's wife and children in his day planner, that he had been carrying handcuffs, duct tape and a box cutter, and that Norman had a record of prior assaultive conduct. Spielberg, afraid for his family and for himself, authorized additional security measures at the Pacific Palisades house, for his mother's Los Angeles residence, and for himself and his family in Ireland and later in England.          
     On July 18, Norman was arrested on an unrelated parole violation. On July 21 (and again on August 4), he confessed to the police that he had gone to Spielberg's home on the night of July 11, intending to rape Spielberg and that, for weeks before that night, had been sexually attracted to and obsessed with Spielberg. Norman explained that he had conducted research to learn all he could about Spielberg, that he had purchased the handcuffs and duct tape for use in his planned rape, and that he had attempted to jump Spielberg's fence but had been chased away by Spielberg's dogs. On July 23, Norman confessed to Rick Vigil, the person in charge of Spielberg's security, confirming the statements he had made to the police and explaining that, had he gained entry and had Spielberg's wife been present, he planned to "tie her up and make her watch" while he raped Spielberg. On July 29, Ramer told Spielberg about Norman's plan to rape him. Spielberg, concerned that Norman might be released from custody, kept the increased security arrangements in place.
     In Norman's personal effects, the police found a notebook of his writings (Norman wrote about "pursuing Mr. Spielberg to become one of his gay lovers," with details about some of the specific things he wanted to do to Spielberg), a map of movie stars' homes with Spielberg's name and address marked in ink, articles about Spielberg, and documents listing the names and other information about various members of the Spielberg family (his sisters, children, wife, former wife, and mother). There were more razors. There was an article chronicling the stalking conduct of John Lennon's killer.                
    By indictment, Norman was charged with one count of stalking, with allegations that he had suffered two prior serious felony convictions (both in 1995, both for assault with a deadly weapon) and served one prior prison term. At trial, the People presented evidence of the facts summarized above. In addition, Spielberg testified that he was still afraid of Norman and believed he was the object of a "mission" that Norman was capable of carrying out. The jury rejected Norman's defense (he claimed his heavy drug use precluded a finding that he had the requisite intent) and convicted Norman of stalking. The allegations were found true, and Norman was sentenced to state prison for a term of 25 years to life. He appeals.  

Reasoning

          [1] Norman contends that, to be punishable under section 646.9, the stalking or other harassment must contemporaneously cause fear. We disagree.

         As relevant, the current version of section 646.9 provides:

         "(a) Any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family, is guilty of the crime of stalking . . .

         (e) For the purposes of this section, 'harasses' means a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose. This course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person.

         "(f) For purposes of this section, 'course of conduct' means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of 'course of conduct.'

         "(g) For the purposes of this section, 'credible threat' means a verbal or written threat, including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat. The present incarceration of a person making the threat shall not be a bar to prosecution under this section.

         "(h) For purposes of this section, the term 'electronic communication device' includes, but is not limited to, telephones, cellular phones, computers, video recorders, fax machines, or pagers. . . ."                  
     To state the obvious, there is nothing in the language of the statute to require a concurrence of act and reaction. By its plain terms, all that is required for a conviction under section 646.9 is proof that the defendant, (1) with the apparent ability to carry out his threat, (2) has willfully, maliciously and repeatedly harassed his victim (3) with the intent to place the victim in reasonable fear for his safety and (4) has, in fact, caused his victim to reasonably fear for his safety or the safety of his family. Indeed, by its current provision that stalking can occur by the use of an "electronic communication device," including a computer, the statute necessarily encompasses situations where there is a delay between the defendant's harassment and his victim's awareness of the defendant's conduct. By way of simplistic example, a threat communicated by e-mail may not be received for hours or days or even weeks (depending upon the frequency with which the recipient checks his—in which event the victim's fear, on reading the e-mail, would occur hours or days or weeks after the threat was made. Since the statute was not otherwise amended when the cyber-stalking provisions were added, logic dictates that the result must be the same here, and that Spielberg's serendipitous absence on the days of Norman's efforts to gain access to Spielberg's residence cannot diminish Norman's criminal responsibility for his course of conduct. What matters is that, when he did learn of Norman's acts and threats, Spielberg suffered the requisite fear for his own safety and the safety of his family.           
     In People v. Falck (1997), and People v. Heilman (1994), each defendant's course of conduct included threats communicated by letters (and, in Falck, by black roses delivered by someone other than the defendant). In People v. Kelley (1997), People v. Halgren (1996), People v. McCray (1997), and People v. Carron (1995), each defendant's course of conduct included threatening messages left on the victims' answering machines. In all of these cases (and they were all decided before the 1998 amendment to the statute), the victim's awareness of the threatening letters and messages necessarily occurred after the letters were sent and the messages recorded, yet none of the convictions were found wanting on this basis. In all of these cases, it would have been irrelevant if the victims had been out of the country at the time the letters were sent or the messages recorded. Although there are no published opinions in which the precise issue raised by Norman has been considered, we find it persuasive that everyone except Norman seems to assume the obvious—hat the Legislature's failure to include in the statute words that would require that the cause be contemporaneous with the effect means that there is no such requirement.

Holding  

Accordingly, while we agree with Norman that the victim must become aware of the stalker's conduct—because, without awareness, the victim could not suffer the emotional distress that is an element of the crime (§ 646.9, subd. (e))—we do not agree that the awareness must be contemporaneous with the course of conduct that constitutes the law unchanged in that respect].)

         Latham confronted J (husband) and insisted that J owed him $300,000. J refused to discuss the matter and shortly thereafter, Latham appeared at J’s home carrying a satchel that contained a semiautomatic pistol. Latham announced that he planned to settle the matter “one way or another.” When S. (J.’s wife) came home, she saw J. and Latham sitting in the kitchen and the black satchel in Latham's lap. S. asked what was going on. Latham remained silent while J. answered, "Al has [a] gun in his lap, and he threatened to kill me if he doesn't get money." J. handed S. a $ 10,000 check he had written and asked her to go the credit union to cash it. S. left, cashed the check, and returned with $10,000 in an envelope and threw it on the table between J. and Latham. Latham took the envelope and departed. Latham challenges his kidnapping conviction.

              The Arizona law provides that "[a] person commits kidnapping by knowingly restraining another person with the intent to . . . aid in the commission of a felony." "Restrain," in turn, means to restrict a person's movements without consent, without legal authority, and in a manner which interferes substantially with such person's liberty, by either moving such person from one place to another or by confining such person. Restraint is without consent if it is accomplished by: Physical force, intimidation or deception.                       
       Latham argues that he did “move” S. and that S. moved at the request of J. S. also could have contacted the police or the individuals at the bank and that Latham did not accompany S. and force her to go to the bank and cash the check.
See State v. Latham 219 P.3d 280 (Ariz. Ct. App. 2009).

State v. Latham, 219 P.3d 280 (Ariz. Ct. App. 2009)

Johnsen, J., Judge

      A few days before the events described above, Latham came to the home of J. (the husband) and S. (his wife) and asked to speak to J. privately. Latham played for J. a tape recording in which he outlined his belief that J. owed him money from a failed real estate transaction several years prior. After listening to the tape for about 20 minutes, J. told Latham "to get the hell out." As he left the home, Latham told J. that he would return to "get his money" and "settle this."
     Five days later, while S. was away from the house, J. heard a noise in the garage. There he found Latham, who without saying anything walked into the house. Latham carried a black zippered satchel that J. recognized as the case in which Latham stored a semiautomatic pistol. Latham kept one hand inside the satchel and said he was there "to settle this up today one way or another."
     The two sat down at the kitchen table and Latham pulled a sheet of paper from his pocket on which he had written the amount of money he claimed J. owed him—a total of $ 300,000—and various installment amounts and dates for payment. Latham then demanded $ 10,000 in cash or he would "end this thing today." When J. replied that he did not have that amount in cash, Latham pulled out his pistol, pointed it at J., racked it to chamber a round and said if he did not receive the money that day he would shoot J., then himself. J. responded that he would have to get the money from his credit union. The two drove to the credit union, but J. was unable to cash a $ 10,000 check at the drive-through window. Rather than permit J. to get out of the car and go into the branch, Latham ordered J. to drive back home to wait for S. to return so she could go cash the check.
    The two returned to J. and S.'s home and waited 30 minutes for S. to return. When S. came home, she saw J. and Latham sitting in the kitchen and the black satchel in Latham's lap. S. asked what was happening; Latham remained silent while J. answered, "Al has [a] gun in his lap, and he threatened to kill me if he doesn't get money." J. handed S. the $ 10,000 check he had written and asked her to go the credit union to cash it. S. left, went to the credit union, cashed the check and returned with $10,000 in an envelope and threw it on the table between J. and Latham. Latham took the envelope and departed.
     After his capture, Latham was charged with Count 1, armed robbery; Count 2, kidnapping of J.; Count 3, kidnapping of S.; and Count 4, burglary in the first degree. At trial, S. testified that when she entered the kitchen, saw J. with Latham and heard from J. of Latham's threat, she believed Latham had a gun, felt "pretty scared" and believed Latham posed a threat. She also explained to the jury that she did not call the police after she departed for the credit union because she was afraid if Latham heard sirens he would shoot her husband.
    After the close of the State's case-in-chief, Latham moved for a judgment of acquittal on all charges pursuant to Arizona Rule of Criminal Procedure ("Rule") 20, but argued specifically for dismissal of the kidnapping charge as to S., contending there was no evidence he had restrained her. After the superior court denied the motion, the jury found Latham guilty of armed robbery, both counts of kidnapping and burglary in the second degree. The superior court sentenced Latham to three concurrent five-year prison terms on the armed robbery and kidnapping convictions and five years' probation on the burglary conviction.
     On appeal, Latham challenges only his conviction on the second of the two kidnapping counts. The applicable portion of the statute under which Latham was convicted provides that "[a] person commits kidnapping by knowingly restraining another person with the intent to . . . aid in the commission of a felony." "Restrain," in turn, means to restrict a person's movements without consent, without legal authority, and in a manner which interferes substantially with such person's liberty, by either moving such person from one place to another or by confining such person. Restraint is without consent if it is accomplished by: Physical force, intimidation or deception.

         Latham contends the State offered no substantial evidence that he restrained S. within the meaning of the statute and, therefore, the superior court erred in denying his motion for judgment of acquittal on the second kidnapping charge.
      Under the statute, the crime of kidnapping requires that the accused restrict the movements of another "in a manner which interferes substantially with such person's liberty." One interferes substantially with another's liberty "by either moving such person from one place to another or by confining such person."
       The theory of the prosecution was that when J. told his wife that Latham had threatened to kill him unless he was paid and directed her to go to the credit union, cash the check and return, Latham caused S. to move from one place to another by intimidation. Latham contends he did not cause S. to move anywhere; he argues that she left to cash the check because J. told her to, not because of anything he, Latham, said to her. We disagree. When J. relayed the death threat from Latham, who was sitting across the table with a gun in his lap, and told his wife to go cash the check, for our purposes it was as if Latham had made the threat and issued the order himself.
    Latham also argues that he did not commit kidnapping because he did not "move" S. within the meaning of the statute. To be sure, in the typical kidnap case the accused usually has taken the victim from one place to another.). In this case, Latham did not force S. into a car and drive with her to the credit union; at most, for purposes of this charge, by the threat he uttered to S.'s husband, he caused her to decide to move from the home to the credit union and back. Thus, Latham presents the question whether causing a victim to move from one place to another is "moving" the victim from one place to another within the meaning of A.R.S. In interpreting a statute, we first look to the words of the statute. "If the statutory language is clear, we ascribe plain meaning to its terms." We turn to other factors only if the language is unclear.
      To satisfy the plain meaning of the kidnapping statute's restraint requirement, the defendant either must move the victim from place to place or confine the victim. We take Latham's argument to be that the requirement that the accused "mov[e] [the victim] from one place to another" suggests that the accused must accompany the victim or go someplace with him or her in some fashion. Indeed, under the language of the statute, it might be argued that the victim must be the object of an act by the accused. That is, the accused must "move" the victim by, e.g., taking, carrying or driving the victim from one place to another.
     While Latham did not take or carry or drive S. from one place to another, by his threat he caused her to move by herself from one place to another. The conclusion that the accused need not transport the victim to be guilty of kidnapping is supported by the language of the statute providing that the accused need not use physical force on the victim. To the contrary, the absence-of-consent element of kidnapping does not require use of physical force but may be satisfied when the has accomplished the crime by use of intimidation or deception.                        
     Neither Latham nor the State has cited any case in which kidnapping is alleged based on a threat that caused the victim to move by himself or herself some distance away from the accused and then return. Nor have we located such a case. Nevertheless, the authorities make plain that a kidnapping may occur when the accused directs the victim to move but does not accompany the victim to the designated location. Cases from other jurisdictions teach that a less significant movement by the victim may not support a kidnapping conviction.          
     The authorities obviously are not altogether consistent when it comes to whether conduct causing a victim to move only a short distance constitutes kidnapping. But we are not required in this case to determine the distance that the accused must have "moved" a victim to be guilty of kidnapping under Arizona law. "Movement" sufficient to support Latham's kidnapping conviction occurred when, by his threat, he caused S. to leave the house, get into her car and head for the credit union. The essence of kidnap is not the distance the victim is transported but the unlawful compulsion against the will to go somewhere." Kidnapping is accomplished when a defendant's threat or intimidation causes a victim to move from one place to another against her will. Whether Latham's threat to kill J. compelled S. to leave the house against her will was a question for the jury that it resolved against Latham. Latham argues the evidence showed that, having left her home for the credit union, S. could have called the police, sought help at the credit union or otherwise not returned home. But the choices S. made after she headed off in the direction of the credit union are not relevant; the evidence that Latham's threat caused her to walk out the door of her home and drive away was sufficient to support Latham's kidnapping conviction. Accordingly, because there was substantial evidence that Latham kidnapped S. when his threat to kill her husband caused her to move from one place to another, we conclude the superior court acted within its discretion in denying Latham's motion for acquittal. 

Defendant Harold Deandre Taylor appealed his convictions of one count of robbery with a dangerous weapon and 10 counts of second degree kidnapping. Taylor argued that the prosecutor failed to “produce sufficient evidence of confinement, restraint, or removal beyond that which was inherent in the robbery with a dangerous weapon.” On the evening of February 14, 1998, defendant and a confederate entered a McDonald's restaurant wearing masks. Defendant displayed a 9mm pistol and ordered everyone to lie face down on the floor. Taylor and the other offender “took the restaurant manager to the back of the restaurant where the safe was located and ordered her to open it.” A third confederate entered the restaurant and remained in the lobby watching the customers and employees. The cashier ran out of the restaurant. The defendant and his accomplice finished collecting the cash from the safe and the three men ran out of the restaurant.
     Defendant was charged with one count of robbery with a dangerous weapon and 13 counts of second-degree kidnapping. The trial court dismissed the count relating to the manager because her asportation to the back of the restaurant to open the safe was "part and parcel" of the robbery. The defendant “maintains that the State presented insufficient evidence of confinement, restraint, or removal separate from that which was inherent in the robbery with a dangerous weapon and, therefore, he cannot be convicted of both offenses. . . . It is self-evident that certain felonies (e.g., forcible rape and armed robbery) cannot be committed without some restraint of the victim.” The State of North Carolina contends that the robbery of the McDonald's occurred at the safe located in the back office of the restaurant and that the restraint of the customers and employees in the lobby was unnecessary to the commission of the robbery. See Taylor v. State, 664 S.E.2d 375 (N.C.App. 2008). In another North Carolina case, the offenders were charged with kidnapping based on their having moved all the occupants of a clothing store at gunpoint thirty or thirty-five feet to a dressing room in the back of the store where they were bound and gagged. The offenders then proceeded to rob the store and take various items of jewelry. Would you convict these defendants of kidnapping. See State v. Davidson, 335 S.E.2d 518 (N.C.App. 1985).  

         In a third case, on 19 March 1994 defendant met a group of men at a party. They decided to rob South 21, a drive-in restaurant in Charlotte, North Carolina. When they approached the restaurant, the owner, Nicholas Copsis, stood just outside near an open door. The robbers approached the entrance, put a gun to Copsis' head, and told him to go inside and open the safe. One conspirator placed a firearm to Poulos's head and stood beside him during the robbery. Another robber placed duct tape around Koufaloitis's wrists and told him to lie on the floor and kicked him twice in the back. Copsis had difficulty opening the safe. One robber said, "Let's go. We're taking too long. Hurry up." Another robber then shot Copsis twice in the legs. Copsis managed to open the safe and the robbers took more than $2,000 and fled. “The key question . . . is whether the kidnapping charge is supported by evidence from which a jury could reasonably find that the necessary restraint for kidnapping 'exposed [the victim] to greater danger than that inherent in the armed robbery itself." The entire crime took three or four minutes. Were the defendants guilty of the kidnapping of Poulis? Of Koufalotis? The court did not discuss whether Copsis had been kidnapped. See State v. Beatty, 495 S.E.2d 367 (N.C.1998).

Taylor v. State 664 S.E.2d 375 (N.C.App. 2008)

         The evidence in this case indicates that defendant entered the McDonald's carrying a handgun, which he pointed at the customers and employees as he ordered them to lie face down on the floor. Defendant and another man found the manager and took her to the back of the restaurant to open the safe while a third man stood guard over the people on the floor.

     The State contends that the robbery of the McDonald's occurred at the safe located in the back office of the restaurant, and, therefore, the restraint of the customers and employees in the lobby was unnecessary to the commission of the robbery. We, however, consider the present case to be controlled by State v. Beatty, in which the Supreme Court held that kidnapping charges, based on similar circumstances, should have been dismissed.
     In Beatty, a group of men approached the owner of a restaurant outside an open door to the restaurant, put a gun to his head, and told him to go inside and open the safe. Once inside, the robbers saw two restaurant employees. One employee, Poulos, "was on his knees washing the floor at the front," while the second, Koufaloitis, "stood three to four feet from the safe cleaning the floor in the back." At that point, "[o]ne robber put a gun to Poulos' head and stood beside him during the robbery. An unarmed robber put duct tape around Koufaloitis' wrists and told him to lie on the floor."
     The Supreme Court upheld the kidnapping conviction with respect to Koufaloitis, but not as to Poulos. The Court explained that "[w]hen defendant bound [Koufaloitis'] wrists and kicked him in the back, he increased the victim's helplessness and vulnerability beyond what was necessary to enable him and his comrades to rob the restaurant." On the other hand, "[w]ith regard to victim Poulos, the evidence shows only that one of the robbers approached the victim, pointed a gun at him, and stood guarding him during the robbery. The victim did not move during the robbery, and the robbers did not injure him in any way." The Court explained further: "The only evidence of restraint of this victim was the threatened use of a firearm. This restraint is an essential element of robbery with a dangerous weapon under N.C.G.S. Section 14-87, and defendant's use of this restraint exposed the victim to no greater danger than that required to complete the robbery with a dangerous weapon."
     In this case, as in Beatty, the robbery took place at a safe in the back of a restaurant, while the victims were restrained in the front by another robber guarding them with a gun, without any of the victims being bound or injured in any way. Because the restaurant's occupants were not bound, once the robbery was complete and the perpetrators had run out of the restaurant, the occupants were not further restrained.
      The sole distinction between this case and Beatty is that the victims were required to lie down on the floor. In Ripley, 360 N.C. at 340, 626 S.E.2d at 294 however, our Supreme Court concluded:

         [T]he asportation of the [victims] from one side of the motel lobby door to the other was not legally sufficient to justify defendant's convictions of second-degree kidnapping. The moment defendant's accomplice drew his firearm, the robbery with a dangerous weapon had begun. The subsequent asportation of the victims was "a mere technical asportation" that was an inherent part of the robbery defendant and his accomplices were engaged in.

         We do not believe that defendant's order, at gunpoint, that the victims lie down on the floor is materially different than the Ripley robbers' order, also at gunpoint, that the victims move from outside the door to the lobby to inside the door. Accordingly, under Ripley, we hold that the act of requiring the victims to lie down is a mere technical asportation insufficient to sustain a charge of kidnapping separate from the robbery.

             This conclusion is supported by this Court's decision in State v. Ross, 133 N.C. App. 310, 515 S.E.2d 252 (1999). In Ross, the record indicated "that, upon entering the apartment, [a robber] pointed the shotgun at [the two victims] and ordered them to step away from the apartment door and get on the floor." Although one of the victims backed from the living room into the kitchen before lying down, the Court held that the evidence was insufficient to establish a removal separate from the robbery when the robbers did not order the victim to move to the kitchen, but rather only ordered him to "back up and get on the floor." The evidence of restraint or removal was no greater in this case.

The State, however, points to State v. Brice, 126 N.C. App. 788, 486 S.E.2d 719 (1997), a decision rendered a year before Beatty. In Brice, one defendant was in the bedroom robbing two male victims, while a second robber was outside the house demanding money from another male victim. A third robber was in the living room with the female victim. The third robber threatened the woman with a gun and ordered her to lie face down on the floor, causing her to become ill. This Court explained in Ross that "[i]n Brice, our Court held that terrorizing the woman in the living room was not an inherent part of the robbery taking place in the bedroom." As the Court acknowledged in Brice, this terrorization was not necessary to carry out the robbery of either the victims in the bedroom or the victim outside the house. We believe, however, that this case more closely resembles Beatty and Ross.
     State v. Davidson, 77 N.C. App. 540, 335 S.E.2d 518 (1985), disc. review denied, 315 N.C. 393, 338 S.E.2d 882 (1986), also relied upon by the State, is likewise inapposite. In Davidson, the defendants entered a retail store, and, at gunpoint, took the store's occupants from the front of the store to a dressing room in the rear of the store; bound their heads, arms, and legs; took their valuables; and then took cash and merchandise from the store. In upholding the kidnapping convictions, this Court concluded: "Removal of the victims to the dressing room [where none of the stolen property was kept] thus was not an inherent and integral part of the robbery." The "removal" was the critical factor.
     The State, however, points to this Court's statement in Davidson that the removal "was a separate course of conduct designed to remove the victims from the view of passersby who might have hindered the commission of the crime." The State contends that the conduct in this case necessarily must have been for the same purpose. In making this argument, the State overlooks the fact that there must still have been "a separate course of conduct."
     In this case, in contrast to Davidson, no removal occurred. The only conduct presented by the State as being apart from the robbery was the guarding of victims with a gun while face down on the floor. While the removal of the victims was not necessary to the robbery in Davidson, both the use of the firearm and the presence of the individual victims were necessary to the robbery with a dangerous weapon conviction.

         Under N.C. Gen. Stat. Section 14-87(a) (2007), a person is guilty of robbery with a dangerous weapon if that person, "having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance . . . ." Consistent with the statute, the State's indictments in this case alleged the threatened use of firearms and the taking of McDonald's property while the alleged kidnapping victims were present.
     In sum, the State's evidence of kidnapping established only the elements of the crime of robbery with a dangerous weapon with the lone added component of the victims' being required to lie down on the floor. Under Ripley, that lone act is a mere technical asportation. As a result, unlike Davidson, the State presented no additional evidence of restraint, confinement, or removal beyond that necessary to commit the robbery.
     We, therefore, hold that the evidence in the record is insufficient to support defendant's convictions for second degree kidnapping and the trial court should have granted defendant's motion to dismiss those charges. Because we are vacating defendant's second degree kidnapping convictions, we do not address defendant's additional arguments relating to those convictions.