Was J.P. raped by Brooks?

 

For these reasons, we conclude that the Court of Appeals erred when it construed the term fear in K.S.A.2005 Supp. 21-3502(a)(1)(A) to mean fear resulting from the use or threat to use force against the victim, another person, or property. We refuse to qualify the term fear and instead note that fear is an inherently subjective concept because, as recognized by the Borthwick court, “[w]hat renders one person immobilized by fear may not frighten another at all.” 255 Kan. at 913. As a result, whether a victim is overcome by fear for purposes of K.S.A.2005 Supp. 21-3502(a)(1)(A) is generally a question to be resolved by the finder of fact. Next, we review the evidence presented at Brooks’ trial to see whether the State presented sufficient evidence to show that J.P. was overcome by fear.

The evidence presented at trial established that on May 7, 2006, Brooks telephoned J.P. and told her he had copies of e-mails that clearly indicated that she was having an affair with a married coworker. He read portions of these e-mails over the phone to J.P., which gave J.P. a very sick feeling. Brooks concluded the conversation by telling J.P. he would be coming over to her house that evening to have sex with her. J.P. testified at trial that Brooks acted angry over the phone and demanded to have sex with her, telling her, “It’s going to have to happen tonight,” and that she “owed” it to him.

Later that evening, Brooks arrived at J.P.’s house with a folder containing copies of the emails. He told J.P. that he would give copies to her employer and to her coworker’s wife if she did not do as he said. J.P. stated at trial: “I tried to reason with him, I tried to get him to leave. I didn’t, you know, I didn’t want him there, and he got agitated, and his threats just remained the same, that he would take those e-mails, and he said he had copies of them at his apartment, and, you know, there is nothing that I could do to keep him from carrying out his threats if I didn’t have sex with him․”

As the Court of Appeals noted, “J.P. told Brooks in no uncertain terms that she did not want to have sex with him and it would be against her will. He said that wasn’t a problem.” Brooks, 46 Kan.App.2d at 604. According to J.P.’s testimony at trial, Brooks insisted that she take her underwear off. She stated that she “didn’t at his first request, but he started getting agitated, then I did.” Brooks took off his pants and put on a condom. J.P. sat down in a chair in the living room. Brooks came up to J.P., held onto her legs, and proceeded to have intercourse with her. J.P. had her hands over her face and her eyes closed so she would not have to look at Brooks.

Viewing this evidence in the light most favorable to the State, we conclude that sufficient evidence was presented at trial showing that Brooks had nonconsensual intercourse with J.P. under circumstances when she was overcome by fear. A rational fact finder could infer from the facts presented at trial that J.P. clearly feared Brooks would publicize the e-mails if she did not submit to having sex with him. And because of this fear, she ultimately submitted to having nonconsensual sex with Brooks. Furthermore, J.P.’s testimony indicates that Brooks’ behavior and agitation inside her home contributed to J.P. being overcome by fear. J.P. stated that she initially refused Brooks’ request for her to take off her underwear, but because Brooks became agitated, she ultimately complied. Finally, a rational fact finder could infer from J.P.’s actions while being sexually penetrated (i.e., closing her eyes and covering her face with her hands) that she was overcome by fear. Finding otherwise is to deny the legitimacy of J.P.’s justifiable fear and its effect on her behavior. See State v. Bunyard, 281 Kan. 392, 412, 133 P.3d 14 (2006) (“K.S.A.2004 Supp. 21-3502[a][1][A] proscribes all nonconsensual sexual intercourse that is accomplished by force or fear, not just the initial penetration”). Both dissenting opinions are troubled by our conclusion that sufficient evidence supports Brooks’ conviction for rape. Justice Moritz acknowledges that the evidence presented at trial established that Brooks’ actions placed J.P. in fear. And because of this fear, J.P., against her will, submitted to being sexually assaulted by Brooks. In other words, she was overcome by fear. See Webster’s Third New International Dictionary 1607 (1993) (defining “overcome” as “to get the better of” and “to affect or influence so strongly as to make physically helpless or emotionally distraught” and identifying “overpower,” “conquer,” and “subdue” as synonyms of overcome). But the dissent contends that the evidence does not establish that J.P. was overcome by fear because there was no evidence presented at trial that J.P. was “immobilized or paralyzed” by fear, terms it believes are synonymous with overcome.

Concluding that the terms are synonymous, both Justice Johnson and Justice Moritz then point to J.P.’s behavior prior to and after the sexual intercourse as being indicative of someone who merely succumbed to conspiracy or blackmail and not someone who was overcome by fear. In making this argument, i.e., how a rape victim should act, both of the dissents take on the role of a jury, weighing the evidence and passing on the credibility of J.P., something that is clearly improper on appellate review. To make matters worse, the dissenting opinions completely ignore the evidence establishing that J.P. was overcome by fear immediately before and during the sexual intercourse, e.g., her compliance with Brooks’ command for her to take off her underwear, her assumption of a submissive position in the chair, and her closing her eyes and covering her face with her hands so she did not have to look at Brooks as he penetrated her. Viewing this evidence in the light most favorable to the State, a rational fact finder could clearly conclude that J.P. did not consent to the sexual intercourse because she was overcome by fear, i.e., her fear got the better of her; her fear affected or influenced her so strongly as to make her physically helpless; her fear overpowered, conquered, and subdued her. See Webster’s Third New International Dictionary 1607 (1993). Even under the dissent’s construction of “overcome,” a rational fact finder could conclude from this evidence that J.P. did not consent to the sexual intercourse because she was “immobilized or paralyzed” with fear. To find otherwise validates those who espouse a “legitimate rape” theory, i.e., rape as a result of physical violence as the sole means by which a rapist can be held criminally accountable.

Because we find that sufficient evidence was presented at trial showing that J.P. did not consent to the sexual intercourse because she was overcome by fear, we reverse the Court of Appeal’s decision reversing Brooks’ rape conviction and affirm that conviction.

Was Alston guilty of the rape of Brown?

Brown, in the view of the North Carolina Supreme Court, was “unequivocal” that she submitted to sexual intercourse out of fear of the defendant. “Even in the absence of physical resistance by Brown … [there was] substantial evidence that the act of sexual intercourse was against her will.” The State, however, did not offer substantial evidence of actual physical force or threats of seriously bodily harm which reasonably induce fear.

Alston warned that he would “fix” Brown’s face and grabbed her arm at the school. These acts may have induced fear, but “appeared to have been unrelated to the act of sexual intercourse between Brown and the defendant.” The record is “devoid of evidence that Brown was in any way intimidated into having sexual intercourse with the defendant by that threat or any other act of the defendant.” Brown’s “general fear” of Alston may have been explicable by his past conduct, but “absent evidence that the defendant used force or threats to overcome the will of the victim to resist the sexual intercourse alleged to have been rape, such general fear was not sufficient to show that the defendant used the force required to support a conviction of rape.”

As a judge, would you permit Child to cross-examine the complaining witness in regard to her sexual conduct with her boyfriend?

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.

As a judge, would you permit Child to cross-examine the complaining witness in regard to her sexual conduct with her boyfriend?

Issue

Here we consider the actus reus required for assault. Since 1872, the Penal

Code has defined assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” This case involves only the “present ability” aspect of the crime.

Facts

On the afternoon of November 29, 2003, sheriff’s officers drove to a house in a rural area of El Dorado County to arrest defendant pursuant to felony warrants. The officers had information that defendant was there and armed with a handgun. Defendant, evidently alerted to their approach, ran from the house. Sergeant Tom Murdoch pursued him on foot. Murdoch wore a vest marked with a large yellow star and the word “SHERIFF” on the front and back. Defendant saw Murdoch and kept running.

After defendant turned up the driveway to another home, Murdoch twice shouted, “Sheriff’s Department, stop.” From a distance of 30 to 35 feet, Murdoch saw that defendant was carrying a handgun. Defendant ran around the front end of a trailer. Murdoch approached, looking and listening for any indication that defendant was still fleeing. Detecting none, and anticipating that defendant might be lying in wait for him, Murdoch advanced to his left, around the back of the trailer. Carefully peering around the corner, he saw defendant pressed against the trailer, facing the front end. He was holding the gun in his right hand, extended forward and supported by his left hand.

Defendant looked back over his right shoulder at Murdoch, who had his own gun trained on defendant. Murdoch repeatedly told defendant to drop the weapon. The officer testified, “I was in fear of my life. I was afraid … he was going to try to shoot me any second.” After some hesitation, defendant brought the gun toward the center of his body, then flipped it behind him. He began to run again, but fell after only a few steps. Defendant was arrested and the gun recovered. It was fully loaded with 15 rounds in the magazine. There was no round in the firing chamber, but defendant could have chambered one by pulling back a slide mechanism. The safety was off. A jury convicted defendant of assault with a firearm on a peace officer under section 245, subdivision (d)(1),4 along with other offenses. Only the assault conviction is at issue on this appeal by the Attorney General. Murdoch described the trailer as about 20 feet long, with a door and windows. Another deputy called it a “travel trailer.”

“Any person who commits an assault with a firearm upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for four, six, or eight years.” (§ 245, subd. (d)(1))

The Court of Appeal majority reversed the assault conviction, concluding that defendant did not have the “present ability to commit a violent injury” required for assault under section 240, because his act of pointing a gun at a place where he thought Sergeant Murdoch would appear was not immediately antecedent to a battery.

Reasoning

People v. Ranson (1974), 40 Cal.App.3d 317, is particularly instructive. Ranson aimed a rifle at a police car. After the police shot and disarmed him, it was discovered that there was no round in the chamber because a cartridge was jammed in the magazine. The Ranson court noted that while an unloaded gun does not confer “present ability,” the element is satisfied if the defendant wields an automatic rifle with cartridges in the magazine, even if the firing chamber is empty. The court continued: “The instant case presents a unique fact situation. The rifle held by appellant was definitely loaded and operable; however, the top cartridge that was to be fired was at an angle that caused the gun to jam. There was evidence from which the trial court could infer that appellant knew how to take off and rapidly reinsert the clip. Time is a continuum of which present is a part. Present can denote immediate or a point near immediate.

We are slightly more removed from immediate in the instant case; however, we hold that the conduct of appellant is near enough to constitute present ability for the purpose of an assault. “Immediate” can mean “near to or related to the present … of or relating to the here and now.” The Ranson court held the evidence of present ability sufficient, even though Ranson had to do much more than turn around to use his weapon against the police. He had to remove the clip, dislodge a jammed cartridge, reinsert the clip, chamber a round, point the weapon, and pull the trigger.

Defendant contends he lacked the present ability to inflict injury not only because he was aiming in the opposite direction from Murdoch, but also because Murdoch had him covered and would have shot him first. However, this argument cannot be squared with cases demonstrating that an assault may occur even when the infliction of injury is prevented by steps taken by victims to protect themselves.

Nothing suggests this present ability element was incorporated into the common law to excuse defendants from the crime of assault where they have acquired the means to inflict serious injury and positioned themselves within striking distance merely because, unknown to them, external circumstances doom their attack to failure. This proposition would make even less sense where a defendant has actually launched his attack—as in the present case—but failed only because of some unforeseen circumstance which made success impossible.

Nor have we found any cases under the California law which compel this result. The decisions holding a defendant lacks present ability when he tries to shoot someone with an unloaded gun or a toy pistol do not support any such proposition. In those situations, the defendant has simply failed to equip himself with the personal means to inflict serious injury even if he thought he had.

Once a defendant has attained the means and location to strike immediately he has the present ability to injure. The fact an intended victim takes effective steps to avoid injury has never been held to negate this present ability.

Holding

Here, defendant’s loaded weapon and concealment behind the trailer gave him the means and the location to strike “immediately” at Sergeant Murdoch, as that term applies in the context of assault. Murdoch’s evasive maneuver, which permitted him to approach defendant from behind, did not deprive defendant of the “present ability” required by section 240. “Immediately” does not mean “instantaneously.” It simply means that the defendant must have the ability to inflict injury on the present occasion. Numerous California cases establish that an assault may be committed even if the defendant is several steps away from actually inflicting injury, or if the victim is in a protected position so that injury would not be “immediate,” in the strictest sense of that term.

Would you convict Tindall of kidnapping?

On November 15, 2006, defendant, Daryl Tindall, was charged with (a) Aggravated Kidnapping, (b) Lewd and Lascivious Molestation-Offender under 18, Victim under 12, and (c) Sexual Battery on a Child under 12 by Perpetrator under 18. On August 8, 2008, the trial court adjudicated defendant guilty of Aggravated Kidnapping and Sexual Battery, and sentenced defendant to life in prison. Defendant has timely appealed.

Facts

There were two child victims in the case, E.K. and J.T.

At trial, J.T. testified that, in the summer of 2006, when she was six years old, she visited her friend, Stewart, who is defendant’s nephew, on a Monday at his home. Defendant, who was sixteen years old, lived together with Stewart in the same home. After answering J.T.’s knock on the door, defendant pulled J.T. by her hair inside the home and to his bedroom, which he subsequently locked. Defendant then placed J.T. on his bed and took his and her clothes off.

Thereupon, defendant rubbed J.T. with his penis on the lips of her “cookie,” which is the name she gave to her private part. J.T. further testified that defendant told her not to tell anybody and that she did not tell anyone afterwards because she was scared. On Tuesday, J.T. visited Stewart’s house again, this time with E.K. J.T. testified that E.K. went inside the house, that defendant was with E.K. in the home, and that Stewart went inside the house and came back out.

On Wednesday, J.T. again visited Stewart’s home by herself, and after answering the door, defendant pulled J.T. by the hair, took her to his bedroom, put her on his bed, took off his clothes, and locked the door. Defendant again rubbed his penis on the lips of her “cookie” for ten minutes, and told J.T. not to tell anyone. J.T. never visited Stewart’s home again.

E.K. testified that, about one week before her birthday in the summer of 2006, she visited Stewart’s home to play and that, while she was outside, Stewart told her that defendant wanted her to go inside the home. After going inside, defendant gave E.K. a bear hug, picked her up, took her to his bedroom, and locked the door. Defendant took E.K.’s clothes off and unzipped his zipper. E.K. tried to stop him and screamed. Defendant held her hands up and touched E.K. with his penis in her “private spot” where she urinates from. E.K. stated that defendant’s actions lasted five to seven minutes and that, after she put her clothes on, defendant told her not to tell anyone about what had happened.

E.K. further testified that, about two weeks after her birthday on a Tuesday, she went to play with Stewart at his home and defendant again grabbed her, took her to his bedroom, took off her clothes, locked the door, and unzipped his pants. While standing up and with one hand holding E.K.’s hands up and the other covering her mouth to prevent her from screaming, defendant again pushed with his penis into her private spot where she urinates from as she was on the edge of his bed with her legs apart. This ensued for about five to seven minutes, and afterwards, defendant again told E.K. not to tell anyone.

Defendant argues that he was entitled to a judgment of acquittal on the aggravated kidnapping charges because the acts which constituted kidnapping were incidental to the underlying alleged sexual misconduct. Section 787.01, Florida Statutes, provides:

“(1)(a) The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:

1. Hold for ransom or reward or as a shield or hostage.

2. Commit or facilitate commission of any felony.

3. Inflict bodily harm upon or to terrorize the victim or another person.

4. Interfere with the performance of any governmental or political function.

(b) Confinement of a child under the age of 13 is against her or his will within the meaning of this subsection if such confinement is without the consent of her or his parent or legal guardian.

(2) A person who kidnaps a person is guilty of a felony of the first degree, punishable by imprisonment for a term of years not exceeding life.

This court has held that, under Faison v. State, 426 So. 2d 963 (Fla. 1983), we “must determine whether a defendant’s conduct amounts to a confinement crime separate from other criminal charges.” In Mobley v. State, 409 So. 2d 1031 (Fla. 1982), the Florida Supreme Court observed that a literal construction of a kidnapping statute would potentially convert almost any forcible felony into kidnapping. The court adopted the view that the kidnapping statute does not apply to unlawful confinement or movements that are “incidental to other felonies.”

Later, in Faison, the Supreme Court announced a multipart test for determining whether a particular confinement or movement during the commission of another crime constitutes kidnapping. In such situations, the confinement or movement:

(a) Must not be slight, inconsequential and merely incidental to the other crime;

(b) Must not be of the kind inherent in the nature of the other crime; and

(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier to commit or substantially lessens the risk of detection.

In the case at bar, both victims were grabbed and taken to another room in the residence. The court, in Formor v. State, 676 So. 2d 1013 (Fla. 5th DCA 1996), found the confinement to be incidental to robbery where the defendant moved the victims three to six feet from bedrooms to bathrooms. Kirtsey v. State, 511 So. 2d 744 (Fla. 5th DCA 1987) involved the robbery of two store employees while closing the store. “One of the employees was tied up and moved about the interior of the store.” The other was forced at gun point to open the safe. The court, in reversing the kidnapping conviction, found that “while these acts were not inherent in the offense of robbery, … and arguably may have made the attempted robbery easier to commit, … the acts were slight and merely incidental to the robbery offense.” The court further noted that the entire criminal episode occurred within the interior of the store.

The confinement of the victims by defendant here lasted only so long as the actual battery, upon which the victims got dressed and left. In Sanders v. State, 905 So. 2d 271 (Fla. 2d DCA 2005), the victim was held in her apartment for three hours with the Defendant demanding sex. Eventually, the Defendant threatened the victim with a knife before the victim acquiesced to the demand. He later allowed the victim to use the bathroom, closed the door and left. The court found these facts did not support a “confinement” separate from the primary crime to support a charge of kidnapping. The defendant “obviously could not have accomplished the sexual battery without the victim’s presence. In other words, the victim’s confinement was the sort that, though not necessary to the underlying felony, was likely to naturally accompany it.” The Sanders court placed emphasis on the fact the victim was not confined beyond the actual battery or left unable to move. “[T]he victim’s confinement in the bathroom ceased once Sanders left the apartment, and the victim was not left in a precarious and vulnerable state.”

In Gray v. State, 939 So. 2d 1095 (Fla. 1st DCA 2006), Gray entered store wearing a mask, seized the store clerk at the counter by the hair, and pulled her to an office where the keys to the store were located. After obtaining the keys, he then pulled her to the front door and ordered her to lock the doors, leaving the keys in the front door. Thereafter, he forced her behind the counter to open the registers. Finally, he ordered the victim to lie down, remove her clothes, and warned her not to move as his friend, who allegedly was also inside the store, would “blow her head off.” The clerk heard the keys jingle and the doorbell ring, and after twenty (20) seconds she pressed the silent alarm. The court observed “[w]hile Gray made threats on her life, he did not bind her. Notwithstanding his directions to the clerk requiring her to lock the store and remove her clothes, such acts did not extend beyond the actual commission of the robbery, because when Gray left the store, the door was unlocked with the victim’s clothes inside, thereby enabling her to dress immediately. As such her confinement did not exceed the scope of the robbery.”

Similarly, the victims here were taken from the front door of the house to a bedroom. Each was held in the room for only so long as the actual battery occurred and then released.

The Supreme Court’s decision in Berry seems very illustrative to the very facts of this case. In Berry, the victims were forced from room to room within the apartment, and at the conclusion of the robbery, the victims were tied up and left facing down on the floor. The court found this confinement was neither slight nor inconsequential under the first primary test of Faison. The court went on to construe this prong “to mean that there can be no kidnapping where the only confinement involved is the sort that, though not necessary to the underlying felony, is likely to naturally accompany it.” The court went on to illustrate an example which fit the facts of our case. For example, if the defendant “had confined the victims by simply holding them at gunpoint, or if the robbers had moved the victims to a different room in the apartment, closed the door, and ordered them not to come out, the kidnapping conviction could not stand.”

In examining the second prong of Faison, the court concluded that binding of the victims was a confinement, not inherent in the crime of robbery, as it was not necessary to tie up the victim in order to commit the robbery.

Here, the victims were held only during the course of the battery, which would inherently occur during the course of any such battery. Neither victim was ever tied up or restrained beyond the time of the actual battery. The second prong of Faison is likewise not met.

Holding

“A conviction is fundamentally erroneous when the facts affirmatively proven by the State simply do not constitute the charged offense as a matter of law.” As defendant here did not commit the crime of kidnapping, his conviction and sentence constitutes fundamental error for which we reverse and remand for further proceedings.

Farmer, J. dissenting

I call attention to the statutory requirement that the movement and confinement facilitate the commission of the sexual battery or reduce the risk of detention. Faison described the pertinent events in that case as follows:

“After discovering that the only employee present in a small contractor’s office was the receptionist, Faison entered the office and attacked the young woman. To do so, he dragged her from her desk in front of a large window to the rear of the office where he sexually assaulted her. He then forced her into a nearby restroom and raped her again.

About ten minutes later, the receptionist spotted Faison across the street, and her employer attempted to stop him. Faison escaped into a residential area and broke into the home of another young woman. He attacked her and violently dragged her from the kitchen down a hallway into the bedroom. The two continued to fight until the woman was nearly unconscious; Faison then sexually assaulted her.”

The Supreme Court concluded that each of the separate episodes conforms with the conditions necessary to prove the crime of kidnapping. The court explained:

“(a) The movements of both victims were effected by substantial force and violence inflicted by Faison to overcome their resistance and to make them to go where he wanted. It cannot be said, therefore, that the asportations were either slight, inconsequential or merely incidental to the sexual batteries which followed.”

(b) These movements were not inherent or necessarily required in the commission of the sexual batteries, which could have been accomplished on the spot without any asportation whatever.

“(c) Both abductions were from an area where the rape could have been more easily observed through a window—in the first victim’s office, and the second one’s kitchen—to the ‘relative seclusion’ of the rear and restroom of the office and the bedroom of the home, respectively. Moreover, each asportation removed the victim from access to a door—again, in the office and in the kitchen—through which she might have escaped. Hence, each made the sexual battery substantially easier to commit and substantially reduced the danger of detection.”

In this case the similarities to Faison are striking:

(a) Defendant pulled J.T. by her hair inside the house, dragged her to the bedroom, closed the door and locked it. Similarly, on both occasions he grabbed E.K., carried her into the bedroom, closed the bedroom door and locked it. This is brutal conduct on a young child made even more odious by its purpose.

(b) These movements were not inherent or necessarily required in the commission of the sexual batteries, which could have been accomplished without either the movement into the bedroom or the locking of the door. He could have carried out the sexual battery where he seized the children.

(c) Both abductions were from an area where the sexual batteries might have been observed—the first at the front door, the second in the entry area of the house—to the seclusion of the bedroom. Moreover each movement and confinement significantly lessened the possibility that the child might be able to escape.

I cannot find any meaningful distinction between the underlying facts of the kidnappings in Faison and those of the kidnappings in this case. Both were manifestly undertaken by this defendant for the obvious purpose of committing the sexual batteries without detection or facilitating them. I would affirm the kidnapping convictions.