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Hurd v. State (4/13/01) ap-1733
Hurd v. State (4/13/01) ap-1733
NOTICE
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opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LEONARD P. HURD, )
) Court of Appeals No. A-7571
Appellant, ) Trial Court No. 4FA-98-201 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1733 April 13, 2001]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Charles R. Pengilly, Judge.
Appearances: Alan J. Hooper and Gloria
Hanssen, Hooper & Hanssen, Fairbanks, for
Appellant. Ben M. Herren, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
In this appeal, we are asked to clarify the relationship
between the crimes of coercion and kidnapping. The State alleges
that Leonard P. Hurd committed both of these crimes. According to
the State's evidence, Hurd invited another man to his house and then
held him captive, refusing to let him leave until he agreed to
transfer thousands of dollars of property to Hurd. The question is
whether Hurd's restraint of the other man will support a separate
conviction for kidnapping or whether, instead, this restraint should
be deemed "incidental" to the crime of coercion. We conclude that
if the State's evidence is believed, Hurd's restraint of the other
man exceeded whatever restraint might be incidental to the crime of
coercion, and thus the State's evidence will support Hurd's separate
conviction for kidnapping.
The State's allegations, and a brief procedural history
of this case
The State alleges that Leonard P. Hurd invited Dennis
Schlotfeldt to his house and then held him captive for thirty to
forty-five minutes. It appears that Hurd owed Schlotfeldt several
thousand dollars. According to the State's evidence, Hurd refused
to let Schlotfeldt leave the house until he signed documents (1)
acknowledging full satisfaction of Hurd's debt, (2) transferring
several parcels of land to Hurd, (3) agreeing to give Hurd $25,000
in cash, and (4) acknowledging that he had received a non-existent
coin collection from Hurd valued at a quarter of a million dollars.
Based on this evidence, the State indicted Hurd for
coercion, third-degree assault, and kidnapping. [Fn. 1] Hurd was
tried by jury in the superior court and convicted of all three
charges. He now appeals his kidnapping conviction.
Hurd's attack on his kidnapping conviction, and the
State's partial concession of error
Hurd argues that even if all of the State's allegations
are true, he committed assault and coercion but he did not commit
kidnapping. Hurd's argument is based on the narrowing construction
of the kidnapping statute that this court adopted in Alam v. State.
[Fn. 2]
Modern kidnapping statutes such as Alaska's define
the crime of kidnapping fairly broadly. For example, under Alaska's
kidnapping statute, a defendant commits kidnapping if they restrain
another person with the intent to facilitate the commission of any
felony, or to facilitate flight from the commission of any felony.
[Fn. 3] The scope of the kidnapping statute is further broadened
by the definition of "restrain" contained in AS 11.41.370(3). Under
this statute, "restrain" means:
to restrict a person's movements unlawfully [by
force, threat, or deception], so as to interfere substantially with
the person's liberty[,] by moving the person from one place to
another or by confining the person either in the place where the
restriction commences or in a place to which the person has been
moved[.]
Given the broad scope of the kidnapping statute, one might
argue that almost any assaultive crime includes at least a momentary
"kidnapping" thus potentially allowing the State to seek a 99-year
sentence for almost any assaultive felony. [Fn. 4] This was the
legal problem that this court addressed in Alam.
In Alam, we concluded that the legislature's commentary
to the kidnapping statute demonstrated that the legislature did not
wish the kidnapping statute to be interpreted as broadly as its
literal wording might suggest. In its commentary, the legislature
declared that "[m]ovements that are merely incidental to the
commission of another crime" will not constitute kidnapping:
Holding a person at gunpoint during a robbery,
for example, will not be elevated to kidnapping even though the
person's movements are restricted.
Alam I, 776 P.2d at 348-49 (quoting 1978 Senate Journal, Supp. No.
47 (June 12), pp. 18-19).
When the legislature amended the kidnapping statute in
1980, they adopted additional commentary which again emphasized that
a restraint would not be deemed a kidnapping if it was "merely
incidental" to the target crime:
For example, a defendant who forces a victim
who is jogging along a bike path into woods a few feet from the bike
path in order to commit a sexual assault has not committed
kidnapping. The "restraint" of the victim was too closely related
to the sexual assault, both in time and the degree of movement, to
qualify as a separate crime.
Alam I, 776 P.2d at 349 (quoting 1980 Senate Journal, Supp. No. 44
(May 29), p. 5).
Based on this legislative commentary to the kidnapping
statute, we held in Alam that when a defendant restrains a victim
to facilitate the commission of another offense, this restraint will
not constitute a kidnapping if it is merely "incidental" to the
commission of the other offense. [Fn. 5] As we clarified in Alam
II, to support a separate conviction for kidnapping, the defendant's
restraint of the victim must exceed "either [temporally] or spatially
... what was necessary to commit [the ulterior crime]". [Fn. 6]
Hurd contends that, if we apply this rule to the facts of
his case, he can not properly be convicted of kidnapping. Hurd
points out that, even under the State's theory of the case, he held
Schlotfeldt captive only long enough to accomplish the target crime
coercing Schlotfeldt to sign the documents that absolved Hurd's
debt and that conveyed money and property to Hurd. Once these
documents were signed, Hurd released Schlotfeldt. This being so,
Hurd argues, his restraint of Schlotfeldt was merely incidental to
the crime of coercion, and the trial judge should have granted him
a judgement of acquittal on the kidnapping charge.
Hurd also argues that even if the State's evidence was
conceivably sufficient to support a kidnapping conviction, his
conviction should nevertheless be reversed. Hurd points out that
neither the grand jury nor the trial jury was instructed that, in
order for Hurd's restraint of Schlotfeldt to constitute a
kidnapping, that restraint had to exceed "either [temporally] or
spatially ... what was necessary to commit" the crime of coercion.
Because neither jury made a finding on this necessary element of the
kidnapping charge, Hurd contends that his conviction must be
reversed and his indictment thrown out.
The State concedes that the trial jury was not adequately
instructed on the type or degree of restraint needed to establish
the offense of kidnapping, and thus the State concedes that Hurd's
conviction must be reversed. Having reviewed the record, we
conclude that the State's concession is well-founded. [Fn. 7]
However, the State contends that its evidence was
sufficient to support a kidnapping conviction if the jury had been
correctly instructed. We therefore must decide whether the evidence
presented at Hurd's trial (viewed in the light most favorable to the
State) was sufficient to establish that Hurd's restraint of
Schlotfeldt was more than "merely incidental" to Hurd's target crime
of coercion.
Also, although the State concedes that the grand jury did
not receive adequate instruction on the type or degree of restraint
needed to establish the offense of kidnapping, the State argues that
the grand jurors undoubtedly would have indicted Hurd for kidnapping
if they had been correctly instructed. Thus, the State contends,
the flaw in the grand jury instructions does not require dismissal
of the kidnapping count of the indictment. Accordingly, even if we
decide that the trial evidence was sufficient to support a
kidnapping conviction, we must then also decide whether the State
should be required to reindict Hurd if they wish to retry him for
kidnapping.
When is restraint "incidental" to a target crime?
Alam declares that when a defendant restrains a victim to
facilitate the commission of a felony, this restraint will not
constitute a kidnapping if the restraint is only "incidental" to the
target felony. But judges who try to apply this rule or who try
to formulate a jury instruction to help jurors apply this rule
soon encounter a problem.
In Alam, we expressly declined to "establish the
parameters" for distinguishing an incidental restraint from a
kidnapping when the defendant's target crime is sexual assault. [Fn.
8] We simply declared that, under the facts of Alam, "any restraint
... imposed upon [the victim] was merely incidental" to the
defendant's attempt to sexually assault her. [Fn. 9]
Thus, the Alam decision declared the proper result for the
particular facts presented in that case, but it provided little
guidance for courts presented with different cases. Alam did not
specify the factors that a court should consider when assessing
whether a restraint is merely "incidental" to the defendant's target
crime. Because these factors remained unidentified, the term
"incidental" remained more a label to describe a result than an
analytical tool that could be used to decide other cases.
Our decision in Alam II is somewhat more helpful. In Alam
II, we paraphrased "incidental" and thus potentially fleshed out the
meaning of that term. We declared that, in order to convict a
defendant of attempted kidnapping, the State would have to prove
that the defendant "intended to restrain [the victim] either
temporarily [sic: "temporally"] or spatially beyond what was
necessary to commit sexual or physical assault." [Fn. 10] From this
description of attempted kidnapping, it follows that the completed
crime of kidnapping would be proved if the defendant actually
restrained the victim either temporally or spatially beyond what was
necessary to commit the target assault.
But even this formulation of the test remains ambiguous.
Alam II directs a court or a jury to assess whether the defendant's
restraint of the victim exceeded, either temporally or spatially,
the type or degree of restraint necessary to commit the target
crime. This leaves the question: what type or degree of restraint
is "necessary" to commit a crime?
Hurd argues that, even under the State's evidence, he
restrained Schlotfeldt no more than was necessary to get Schlotfeldt
to sign the documents, and thus the restraint was merely incidental
to the coercion. But the State argues that Hurd's analysis begs the
question.
The State's argument that the Alam rule does not apply
when the defendant's target crime is coercion
The State argues that the Alam test should not apply when
a defendant is charged with coercion. That is, the State contends
that any restraint of a coercion victim, no matter how minimal, can
support a separate kidnapping conviction. According to the State,
this is because coercion (unlike robbery or rape) is not a crime
that inevitably involves restraint of the victim.
The State points out that it is possible to commit the
crime of coercion without restraining the victim at all. For
example, under AS 11.41.530(a)(1), coercion consists of compelling
another person to engage in conduct (or to abstain from conduct) by
threatening to commit a crime if the person fails to comply with
one's demands. No restraint is necessary to communicate a threat.
A threat can be communicated in the victim's home or place of
business; it can be communicated in a public place such as a park;
it can be communicated by telephone or letter or e-mail.
Likewise, restraint is generally not needed to obtain the
victim's compliance with the defendant's demand. Coercion is
similar to extortion: generally speaking, the victim's impetus for
complying with the defendant's demand is the desire not to be
subjected to another criminal act or an embarrassing disclosure in
the unspecified future. Moreover, in many instances, the nature of
the defendant's demand is such that the victim of coercion would be
unable to comply with the demand unless the victim were free to
leave.
Because the crime of coercion can be committed without
restraining the victim, the State argues that coercion is
fundamentally different from the crimes of robbery and sexual
assault that figured so prominently in the Alam court's analysis.
With rare exceptions, robbery and sexual assault can not be
committed without restraining the victim to some degree. But
restraint is not inevitably incidental to the commission of
coercion. Thus, the State contends that when a defendant uses any
restraint to accomplish coercion, the defendant can properly be
convicted of kidnapping as well.
There is case law from other jurisdictions that supports
the State's position that the Alam rule applies only to robbery,
sexual assault, and other assaultive crimes that almost inevitably
involve some degree of restraint. For example, in People v. Wesley
[Fn. 11], the Michigan Supreme Court held that a defendant should
not be convicted of kidnapping for committing a restraint that is
merely incidental to a rape, robbery, or other assault. At the same
time, however, the Michigan court held that when the defendant's
target crime was murder or extortion, any restraint would support
a conviction for kidnapping because such crimes do not inevitably
involve restraint. [Fn. 12]
In Alaska, the crime of coercion is essentially a lesser
degree of extortion. [Fn. 13] Thus, following the Michigan court's
rationale, any restraint that a defendant might employ to facilitate
the crime of coercion would suffice to establish the separate crime
of kidnapping. Based on this reasoning, the State asks us to rule
that Alam is inapplicable to Hurd's case.
We note that the State's argument on this point is
inconsistent with the State's concession of error on the jury
instruction issue for if the State is correct that the Alam rule
does not apply when a defendant's target crime is coercion, there
would have been no need to give Hurd's jury (or grand jury) any
special kidnapping instruction beyond explaining the elements of the
crime as they are defined in AS 11.41.300(a). However, we are
willing to overlook this inconsistency in the State's arguments
because we conclude that Hurd's case does not require us to decide
whether Alam applies to all crimes or only some. As we explain in
the next section of this opinion, the State's evidence was
sufficient to support a separate kidnapping conviction even under
the Alam rule. We therefore decline to resolve the further issue
of whether the Alam rule is inapplicable when the defendant's target
crime is coercion and we accept the State's concession of error
on the jury instruction issue for the limited purpose of deciding
Hurd's appeal.
The State's evidence was sufficient to support a
kidnapping conviction under the Alam rule
We now turn to the State's alternate argument that, even
if the Alam rule applies to all target crimes including coercion,
any significant movement or confinement of a victim during the
commission of the target crime will support a separate conviction
for kidnapping. This argument finds support in cases from other
states. For example, in State v. St. Cloud [Fn. 14], the South
Dakota Supreme Court held that significant movement or confinement
of a sexual assault victim can support a kidnapping conviction:
Neither movement nor prolonged confinement
of the victim is an essential element of first-
degree rape under [our statute]. Moreover,
most movement of rape victims by their
attackers is designed to seclude the victim
from possible assistance and to prevent escape
[conduct] which inevitably increases the risk
of harm to the victim.
We read [our prior cases] merely to say
that a kidnapping may be incidental to another
crime when the kidnapping consists either of
confinement of minimal duration or of minimal
movement within the same premises. Where,
however, the kidnapping consists of prolonged
confinement or movement from one premises to
another even if only from a parked car to an
abandoned house then ... the kidnapping
cannot be considered incidental to another
crime.
St. Cloud, 465 N.W.2d at 181.
We note that the South Dakota court's formulation of the
test is similar to the wording we used in Alam II: a defendant's
restraint of a victim can support a separate conviction for
kidnapping when that restraint either temporally or spatially
exceeds what was necessary to commit the target assault. [Fn. 15]
However, there is also case law from other states to
support Hurd's position that even a significant restraint can be
"incidental" to a target crime. Hurd particularly relies on a series
of New York cases that apply what has become known as the
Levy Lombardy rule. In People v. Levy [Fn. 16], the New York Court
of Appeals reversed the kidnapping conviction of a defendant who
held two people at gunpoint and forced them to accompany him on a
twenty-minute drive while he robbed them. The New York court
concluded that Levy should not be punished for kidnapping because
[i]t is a common occurrence in robbery ... that
the victim be confined briefly at gunpoint or
bound and detained, or moved into ... another
room or place. It is unlikely that these
restraints, sometimes accompanied by
asportation, which are incident[] to ... and
have long been treated as integral parts of
other crimes, were intended by the Legislature
... to constitute a separate crime of
kidnapping, even though kidnapping might
sometimes be spelled out literally from the
statutory [definition of kidnapping].
Levy, 204 N.E.2d at 844, 256 N.Y.S.2d at 796.
In People v. Lombardy [Fn. 17], the New York Court of
Appeals reached a similar result in a kidnapping / rape case in
which the victims were drugged and then driven across town to a
motel, where they were sexually assaulted. The court concluded that
the defendant's asportation of the victims did not constitute a
kidnapping, for the kidnapping statute was "not [intended] to apply
... to crimes which are essentially robbery, rape or assault and in
which some confinement or asportation occurs as a subsidiary
incident." [Fn. 18]
Hurd urges us to follow the Levy Lombardy rule and to
grant him a judgement of acquittal on the kidnapping charge. Hurd
argues that even if he held Schlotfeldt captive for upwards of an
hour, the evidence undisputedly shows that he employed this
restraint only to facilitate his target crime of coercion, and that
he released Schlotfeldt as soon as the coercion was complete (i.e.,
as soon as Schlotfeldt signed the documents). Hurd contends that,
under the Levy Lombardy rule, the gist of his criminal conduct
remained coercion, and Schlotfeldt's confinement was only a
subsidiary incident of that coercion.
But after considering the matter, we conclude that we can
not adopt the Levy Lombardy rule. This rule is inconsistent with
the Alaska Legislature's commentary to the kidnapping statute, and
it is also inconsistent with past decisions of this court.
As explained above, when the legislature amended the
kidnapping statute in 1980, they also approved an accompanying
commentary. This commentary reiterates the legislature's intention
to narrow the potential reach of the kidnapping statute. With
respect to the target crime of sexual assault, this commentary
declares that the kidnapping statute should not be construed "[to]
turn a restraint that was merely incidental to a sexual assault into
kidnapping". [Fn. 19]
To illustrate this principle, the 1980 commentary states
that no kidnapping is committed when a rapist forces a jogger off
a bike path and a few feet into the woods. But the commentary then
gives a counter-example i.e., an example of what the legislature
believed to be a true kidnapping that is clearly inconsistent with
the Levy Lombardy rule:
However, if the victim was forced into the
defendant's car and then driven a block to a
nearby deserted house and sexually assaulted,
or sexually assaulted [in the car] while [the
defendant's] accomplice was driving the car,
kidnapping has occurred. In this situation[,]
the restraint was specifically done to
facilitate the commission of the felony and
there was significant confinement or movement
of the victim beyond that necessary to commit
the sexual assault. (See generally Levshakoff
v. State, 565 P.2d 504 (Alaska 1977).)
1980 Senate Journal, Supp. No. 44 (May 29), p. 6.
The Levy Lombardy rule is also inconsistent with prior
decisions of this court. In Walker v. State [Fn. 20], this court
upheld separate convictions and sentences for kidnapping and robbery
when the defendant forced his two victims into a car at gunpoint and
then drove them to a bank, where one of the victims was forced to
withdraw money from her account. [Fn. 21] And in Lacy v. State [Fn.
22], this court upheld separate convictions and sentences for
kidnapping and rape when the defendant entered the victims' car and,
while holding them at gunpoint, forced them to drive to a sparsely
populated section of the city, where he then raped one and attempted
to rape the other. [Fn. 23]
For these reasons, we reject Hurd's invitation to adopt
the Levy Lombardy line of cases. As demonstrated both by the
legislature's commentary to the kidnapping statute and by this
court's decisions applying that statute, if the defendant's
restraint of a victim is significant enough, that restraint can
constitute the independent crime of kidnapping even though the
restraint might simply be part of the defendant's plan for
committing the target crime.
How should a jury be instructed on this issue?
Our decisions in Alam I and Alam II establish that when
a defendant is charged with kidnapping in conjunction with another
target crime, the jury must decide whether the defendant's restraint
of the victim was more than "incidental" to the target crime.
However, as explained above, neither Alam I nor Alam II provides
specific guidance to trial court judges who must craft the required
jury instruction on this issue. Alam II contains our most pertinent
statement on this question: we said that, in order to support a
separate conviction for kidnapping, the defendant's restraint of the
victim must exceed "either [temporally] or spatially ... what was
necessary to commit [the target crime]". [Fn. 24] But even this
formulation of the test fails to answer the question: what type or
degree of restraint is "necessary" to commit a crime?
In State v. Stouffer [Fn. 25], the Maryland Court of
Appeals declared that when a court assesses whether a restraint is
"incidental" to the defendant's target crime, the court should
examine (1) how long the victim was restrained; (2) if the victim
was moved, how far the victim was moved and where the victim was
taken; (3) whether, under the facts, the restraint exceeded what was
necessary for commission of the defendant's target crime; (4)
whether the restraint significantly increased the risk of harm to
the victim beyond the risk of harm inherent in the target crime
itself; and (5) whether the restraint had some independent purpose
i.e., whether the restraint made it significantly easier for the
defendant to commit the target crime or made it significantly easier
for the defendant to escape detection. [Fn. 26] Several other
jurisdictions have adopted similar tests. [Fn. 27]
We believe that these factors are appropriate indicators
of whether a defendant's restraint of a victim will support a
separate conviction for kidnapping or whether, instead, that
restraint is merely incidental to the defendant's commission of the
target crime. A jury instruction that asks the jurors to evaluate
these factors supplemented, perhaps, by the examples provided by
the legislature in its commentary to the kidnapping statute will
satisfy the requirements of Alam.
These same factors should be weighed by the trial judge
when a defendant seeks a judgement of acquittal on a kidnapping
charge. We therefore now assess the evidence presented in Hurd's
case using the test we have just formulated.
Should the superior court have granted Hurd's motion for
a judgement of acquittal on the kidnapping charge?
The indictment against Hurd alleges that he committed the
crime of coercion under AS 11.41.530(a)(1) by "threatening to inflict
physical injury on Dennis Schlotfeldt" and thereby "compell[ing] ...
Schlotfeldt to engage in conduct from which [he had] a legal right
to abstain, to wit: the signing of a contract promising to transfer
money and real property to [Hurd]". The jury found Hurd guilty of
this charge, and Hurd has not challenged his coercion conviction.
The question is whether, when the evidence is viewed in the light
most favorable to the State, Hurd's conduct also constituted the
separate crime of kidnapping.
The crime of coercion requires only a conditional threat
of future harm. Under AS 11.41.530(a)(1), the crime is committed
when the defendant compels a victim to engage in (or refrain from)
conduct by "instilling in the [victim] ... a fear that, if the
[defendant's] demand is not complied with, the [defendant] or
another [person] may inflict physical injury on anyone". Thus, Hurd
would have committed coercion if he had merely threatened to injure
Schlotfeldt at some unspecified future time if he did not sign the
documents. But the State presented evidence that Hurd engaged in
the present use of force to hold Schlotfeldt in captivity
threatening Schlotfeldt with immediate injury if he tried to leave
Hurd's house without signing the documents. Viewing this evidence
in the light most favorable to the State, Hurd's conduct in
particular, his restraint of Schlotfeldt far exceeded the actus
reus of coercion. Indeed, under the State's evidence, Hurd's
conduct closely resembled a traditional kidnapping in which the
victim is held captive until a ransom is paid.
When we assess the State's evidence in light of the five
factors outlined in the previous section of this opinion, we
conclude that this evidence (if believed) was sufficient to support
Hurd's conviction for kidnapping. The State presented evidence that
Hurd restrained Schlotfeldt for thirty to forty-five minutes, a
restraint that far exceeded whatever minimal restraint might
conceivably be inherent in the crime of coercion. Moreover, viewing
the facts of this restraint in the light most favorable to a
kidnapping conviction, the restraint also significantly increased
the risk of harm to Schlotfeldt, for Schlotfeldt was trapped inside
Hurd's house and was at his mercy. Finally, again viewing the
evidence in the light most favorable to the State, Schlotfeldt's
isolation inside Hurd's house made it significantly easier for Hurd
to coerce Schlotfeldt into signing the documents that conveyed
Schlotfeldt's property to Hurd. For these reasons, the superior
court correctly denied Hurd's motion for a judgement of acquittal
on the kidnapping charge.
Does the flaw in the grand jury instructions require
dismissal of the kidnapping count of the indictment?
As explained above, the State concedes that the grand jury
was not instructed that kidnapping requires proof of a restraint
over and above the restraint that would be merely incidental to the
defendant's target crime. At the same time, however, the State
asserts that the kidnapping count of the indictment need not be
dismissed. The State argues that had the grand jurors received the
correct instructions, they undoubtedly would have found sufficient
grounds to indict Hurd for kidnapping.
The State's position is supported by our decision in Wood
v. State. [Fn. 28] In Wood, the grand jury was incorrectly
instructed on the elements of sexual assault. (Specifically, the
grand jurors were not told that the State was obliged to prove that
the defendant recklessly disregarded the victim's lack of consent.)
Nevertheless, we upheld the indictment for two reasons: first,
because Wood never filed a pre-trial motion to dismiss the
indictment, and second, because "given [the victim's] testimony that
Wood literally beat her into submission, it is unlikely that the
grand jury would have refused to return an indictment even if it had
been properly instructed that Wood's reckless disregard of [the
victim's] lack of consent was an element of the offense." [Fn. 29]
We reach a similar conclusion in Hurd's case. The State's
evidence at grand jury showed that Hurd restrained Schlotfeldt far
more than was "merely incidental" to Hurd's target crime of coercion.
In light of the State's grand jury evidence, it is unlikely that the
grand jury would have refused to indict Hurd for kidnapping even if
they had been properly instructed on the concept of "incidental"
restraint. We therefore uphold the kidnapping count of the
indictment.
Conclusion
The State has conceded that Hurd's kidnapping conviction
must be reversed because the trial jury was not adequately
instructed on the crime of kidnapping i.e., they were not told
that a defendant is not guilty of kidnapping if the defendant's
restraint of the victim was merely incidental to the defendant's
commission of a different target crime. We accept the State's
concession of error, and we therefore REVERSE Hurd's kidnapping
conviction.
However, we conclude that the State's evidence, if
believed, will support Hurd's conviction for kidnapping. The trial
judge was therefore correct when he refused to grant Hurd a
judgement of acquittal on the kidnapping charge. The State may try
Hurd again for this crime.
Additionally, we uphold the kidnapping count of the
indictment. The State need not reindict Hurd.
FOOTNOTES
Footnote 1:
AS 11.41.530(a) (coercion); AS 11.41.220(a) (third-degree
assault); AS 11.41.300(a) (kidnapping).
Footnote 2:
776 P.2d 345 (Alaska App. 1989) (Alam I), appeal after remand,
793 P.2d 1081 (Alaska App. 1990) (Alam II).
Footnote 3:
AS 11.41.300(a)(1)(E).
Footnote 4:
See Alam I, 776 P.2d at 349. The maximum penalty for
kidnapping is 99 years' imprisonment. See AS 12.55.125(b).
Footnote 5:
Alam I, 776 P.2d at 349.
Footnote 6:
793 P.2d at 1083-84.
Footnote 7:
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (an
appellate court must not accept the State's concession of error in
a criminal case without independently verifying that the concession
is well-founded).
Footnote 8:
Alam I, 776 P.2d at 349.
Footnote 9:
Id. at 350.
Footnote 10:
Alam II, 793 P.2d at 1083-84.
Footnote 11:
365 N.W.2d 692 (Mich. 1984).
Footnote 12:
See id. at 696-97. Accord, People v. Adams, 205 N.W.2d 415,
422 (Mich. 1973). See also State v. Prevette, 345 S.E.2d 159, 165
(N.C. 1986), where the court "recognize[d] the fact that murder is
not within that class of felonies, such as forcible rape and armed
robbery, which cannot be committed without some restraint of the
victim."
Footnote 13:
See the commentary to the coercion statute, AS 11.41.530. This
commentary is found in 1978 Senate Journal, Supp. No. 47 (June 12),
p. 29.
Footnote 14:
465 N.W.2d 177 (S.D. 1991).
Footnote 15:
Alam II, 793 P.2d at 1083-84.
Footnote 16:
204 N.E.2d 842, 256 N.Y.S.2d 793 (N.Y. 1965).
Footnote 17:
229 N.E.2d 206, 282 N.Y.S.2d 519 (N.Y. 1967).
Footnote 18:
Id., 229 N.E.2d at 208, 282 N.Y.S.2d at 521.
Footnote 19:
1980 Senate Journal, Supp. No. 44 (May 29), p. 6.
Footnote 20:
674 P.2d 825 (Alaska App. 1983).
Footnote 21:
See id. at 827, 833.
Footnote 22:
608 P.2d 19 (Alaska 1980).
Footnote 23:
See id. at 20, 23.
Footnote 24:
793 P.2d at 1083-84.
Footnote 25:
721 A.2d 207 (Md. 1998).
Footnote 26:
See id. at 215.
Footnote 27:
See People v. Moreland, 686 N.E.2d 597, 600-01 (Ill. App.
1997); State v. Farmer, 445 S.E.2d 759, 764 (W.Va. 1994); State v.
St. Cloud, 465 N.W.2d 177, 181 (S.D. 1991); United States v. Howard,
918 F.2d 1529, 1535-36 (11th Cir. 1991); State v. LaFrance, 569 A.2d
1308, 1312-13 (N.J. 1990); Government of the Virgin Islands v.
Berry, 604 F.2d 221, 227 (3rd Cir. 1979).
Footnote 28:
736 P.2d 363 (Alaska App. 1987).
Footnote 29:
Id. at 367.
