11.3. Kidnapping West's Key Number Digest West's Key Number Digest, Criminal Law 45.

10 West's Key Number Digest, Kidnapping 1 to 6 West's Key Number Digest, Kidnapping 4 Legal Encyclopedias C.J.S., Abduction §§ 1 to 27 C.J.S., Kidnapping §§ 1 to 7

Penal Code Section 20.03 defines the conduct constituting kidnapping.[FN1] The central concept is abduction, which is basically an aggravated form of restraint.[FN2] Restraint becomes abduction if done with the intent to prevent the victim's liberation[FN3] and the victim is secreted in a place where he or she is unlikely to be found or if deadly force is threatened or used.[FN4] The alternative elements of secreting victims where they are not likely to be found or threatening to use deadly force are elements of the culpable mental state of intent to prevent liberation rather than elements of the conduct. Kidnapping is the knowing and intentional abduction of a person. Abduct means to restrain a person with the intent to prevent liberation by either secreting someone where they are not likely to be found or using or threatening to use deadly force. These two

alternatives modify the culpable mental state of intent to prevent liberation. Under this interpretation the offense is complete once a restraint is accomplished and there is evidence that the actor intended to prevent liberation by one of the two alternatives, rather than being complete once restraint is accomplished by the use of secretion or force. It is this culpable mental state that distinguishes false imprisonment from kidnaping. False imprisonment is nothing more than an intentional restraint. It becomes a kidnaping once a defendant evidences a specific intent to prevent liberation by either secretion or deadly force. False imprisonment is not elevated by the manner in which restraint is accomplished. The state need only prove (1) a restraint was made (2) with a specific intent to prevent liberation with one of the two alternatives. In other words, the initial restraint need not be accompanied by force. A defendant does not have to compel the restraint by such means. He need only effect the restraint with the intent to prevent liberation by either secretion or the use of deadly force.[FN5] As noted above, there is no minimum time to accomplish a restraint. If the defendant has the requisite intent, that is to either secrete in a location not likely to be found or to use deadly force, restraint is completed once freedom of movement is restricted.[FN6] An indictment for kidnapping may either (1) allege that a defendant abducted the

complainant or (2) state that the defendant used or threatened to use deadly force or secreted the complainant where he or she was not likely to be found. If the latter method is used, the indictment must allege that the abduction was with the intent to prevent the complainant's liberation; it is not sufficient to aver that the abduction was without the victim's consent.[FN7] The latter method is mandatory if the defendant files a motion to quash, demanding notice of the manner and means of committing the offense.[FN8] Secreting a victim occurs when the victim is left in a situation where help is not likely to be forthcoming. Even if the victim has access to escape or other persons or innocent individuals are around the victim, kidnaping occurs if the victim is physically unable to take advantage of the opportunity.[FN9] Deadly force does not require a specific threat; it may be accomplished, just as in any other offense, by the mere display of a deadly weapon.[FN10]

[FNa0] Taos, New Mexico

-------------------------------------------------------------------------------[FN1] V.T.C.A., Penal Code § 20.03. [FN2] Carpenter v. State, 551 S.W.2d 724 (Tex.Crim.App.1977).

[FN3] Carpenter v. State, 551 S.W.2d 724 (Tex.Crim.App.1977); Padgett v. State, 683 S.W.2d 453 (Tex.App.—San Antonio 1983, no pet.). [FN4] McIntosh v. State, 686 S.W.2d 759 (Tex.App.—Houston [1st Dist.] 1985, no pet.). [FN5] Brimage v. State, 918 S.W.2d 466 (Tex.Crim.App.1994); Mason v. State, 905 S.W.2d 570 (Tex.Crim.App.1995). Here, however, there was no evidence that the defendant ever intended to hide his victim or to use deadly force; he simply drove around town with him by the use of an artifice. See also Santellan v. State, 939 S.W.2d 155 (Tex.Crim.App.1977). Here the defendant shot the victim in the head and then placed the unconscious victim in his car. There was some possibility that the victim was still alive but only for a few moments. The Court found this sufficient evidence of restraint to uphold the kidnaping element of a capital murder. In King v. State, 961 S.W.2d 691 (Tex.App.—Austin, 1998 pdr ref'd), the Court cited Brimage and held that the issue in a kidnapping case is whether the defendant intended to take his victim to a place where he or she was not likely to be found, or intended to use deadly force, not whether the defendant accomplished his purpose. Price v. State, 35 S.W.3d 136 (Tex.App.—Waco 2000) (Intent to prevent liberation by force established when defendant shoved complainant into bathroom and closed door when someone knocked at front door and, later, throwing complainant behind a bed when a second person knocked on door).

[FN6] Gaffney v. State, 937 S.W.2d 540 (Tex.App.—Texarkana 1996, pdr ref'd). [FN7] Carpenter v. State, 551 S.W.2d 724 (Tex.Crim.App.1977). [FN8] Gibbons v. State, 652 S.W.2d 413 (Tex.Crim.App.1983); Reynolds v. State, 760 S.W.2d 351 (Tex.App.—Houston [1st Dist.] 1988, pet. ref'd). [FN9] Cortez v. State, 738 S.W.2d 372 (Tex.App.—Corpus Christi 1987, no pet.). See, however, Beeman v. State, 828 S.W.2d 265 (Tex.App.—Forth Worth 1992, pet. ref'd). The court held evidence insufficient to sustain allegation of secreting victim in place unlikely to be found where defendant forced the complaining witness into a storeroom and sexually assaulted her. The door to the rest of the store remained open, and the defendant fled when a customer arrived. The storeroom was visible to anyone who entered the back area. The Court held that the evidence did not show that the defendant, by means of threats, isolated the complaining witness from anyone who could be of assistance. While, in reality, this case was one of sexual assault, with the elements of kidnapping incidental to the primary offense, the Court of Criminal Appeals has rejected the Model Penal Code analysis that this case employs. [FN10] Jernigan v. State, 706 S.W.2d 813 (Tex.App.—Fort Worth 1986, pet. ref'd). See

also Rodriguez v. State, 730 S.W.2d 75 (Tex.App.—Corpus Christi 1987, no pet.).