(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued March 15, 1994 -- Decided July 27, 1994
STEIN, J., writing for a unanimous Court.
The issue on appeal is whether the trial court erred in failing to instruct the jury, at Charles Brent's
request, on the offense of criminal restraint as a lesser-included offense of kidnapping.
Brent was indicted on charges of first-degree kidnapping and first-degree aggravated sexual assault,
in connection with the abduction and rape of a thirteen-year-old girl, M.C. Brent grabbed M.C. as she was
walking to school and carried her across the street to an undeveloped lot where he raped her.
The kidnapping statute requires that a removal be accomplished by force, threat, or deception, or, in
a case of a child under 14 years old, without consent of a parent. Brent's defense was that he was
misidentified.
Prior to jury deliberations, defense counsel requested that the court charge the jury on third-degree
criminal restraint as a lesser-included offense of the first-degree-kidnapping by asportation charge on which
Brent had been indicted. The trial court declined to give the lesser-included charge, stating that it did not
find criminal restraint to be a lesser-included offense of kidnapping by asportation. Instead, the court
charged the jury on first- and second-degree kidnapping and on first-degree aggravated sexual assault and
second-degree sexual assault. A jury convicted Brent of first-degree kidnapping and first-degree aggravated
sexual assault. He was sentenced, in accordance with the kidnapping statute, to life imprisonment with a
twenty-five-year parole-ineligibility period. The trial court merged the aggravated-sexual-assault conviction
into the kidnapping conviction.
On appeal, the Appellate Division reversed Brent's kidnapping conviction, finding that the trial court
had erred in failing to charge the jury at Brent's request on the lesser-included offense of criminal restraint.
The Supreme Court granted the State's petition for certification.
HELD: Criminal restraint is a lesser-included offense of the offense charged-first-degree kidnapping by
asportation to facilitate the commission of an aggravated sexual assault. Nonetheless, the
evidence does not demonstrate a rational basis for a verdict acquitting Charles Brent of the
greater charge of kidnapping and convicting him of the lesser-included crime of criminal
restraint. Therefore, the trial court did not err in failing to instruct the jury, at Brent's request,
on the offense of criminal restraint as a lesser-included offense of kidnapping.
1. Pursuant to N.J.S.A. 2C:1-8e, a court should not charge a jury in regard to an included offense
unless there is a rational basis for a verdict convicting the defendant of that included offense. Under the
Code of Criminal Justice (Code), it is improper for the trial court to charge an offense, even when requested
by the defendant, if there is no evidence in the record to support a conviction. The submission of an
included crime is justified only where there is some basis in the evidence for finding the defendant innocent
of the crime charged and guilty of the included crime. (pp. 6-9)
2. The trial court's ability to instruct a jury on an uncharged included offense differs depending on whether the State or the defendant has requested the charge. A court can charge a jury on an unindicted
offense, over the defendant's objection, if the offense is "included" in an offense for which the defendant was
indicted. However, when a defendant requests a lesser-included charge, the court can charge the jury on that
offense only when the evidence presents a rational basis on which the jury could acquit the defendant of the
greater charge and convict the defendant of the lesser charge. Failure to instruct the jury at the defendant's
request on a lesser charge for which the evidence provides a rational basis warrants reversal of the
defendant's conviction. (pp. 9-14)
3. A person is guilty of kidnapping if he or she unlawfully removes another a substantial distance from
the vicinity where the victim was found, or if the kidnapper unlawfully confines another for a substantial
period with the purpose to facilitate a crime, to inflict bodily injury or terrorize the victim or to interfere with
the performance of any governmental or political function. A person commits the third-degree crime of
criminal restraint if the person knowingly restrains another unlawfully in circumstances exposing that person
to a risk of serious bodily injury or if the person holds another in a condition of involuntary servitude. What
distinguishes criminal restraint from kidnapping is the absence of any specified kidnapping purpose. Thus, if
the defendant does not act with any of the stated purposes under the kidnapping statute, the restraint of
liberty is a third-degree crime of criminal restraint. (pp. 14-18)
4. Criminal restraint is a lesser-included offense of kidnapping by asportation to facilitate the
commission of an aggravated sexual assault. However, for the trial court to charge on this unindicted
offense, the court must conclude not only that the offense is included in the charged offense but also that the
evidence at trial presents a rational basis for the jury to acquit Brent of the greater offense and convict him
of the lesser offense. There was nothing proffered at trial contradicting the evidence demonstrating that
Brent had moved M.C. a substantial distance for the purpose of facilitating the commission of a sexual
assault. Because the record fails to disclose a rational basis for the jury to reject the first-degree crime of
kidnapping and to convict Brent of the third-degree crime of criminal restraint, the trial court did not err in
declining to charge the jury on criminal restraint. (pp. 18-24)
The judgment of the Appellate Division is REVERSED and Charles Brent's conviction for first-degree kidnapping is reinstated.
JUSTICES CLIFFORD, HANDLER, POLLOCK, O'HERN, and GARIBALDI join in JUSTICE
STEIN's opinion. CHIEF JUSTICE WILENTZ did not participate.
SUPREME COURT OF NEW JERSEY
A-
119 September Term 1993
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CHARLES BRENT,
Defendant-Respondent.
Argued March 15, 1994 -- Decided July 27, 1994
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
265 N.J. Super. 577 (1993).
Linda A. Rinaldi, Deputy Attorney General,
argued the cause for appellant (Deborah T.
Poritz, Attorney General of New Jersey,
attorney).
Michael B. Jones, Assistant Deputy Public
Defender, argued the cause for respondent
(Susan L. Reisner, Acting Public Defender,
attorney; Mr. Jones and Toni M. Seguin,
Designated Counsel, of counsel and on the
briefs).
The opinion of the Court was delivered by
STEIN, J.
In this appeal we consider whether the trial court erred in
failing to instruct the jury at defendant's request on the
offense of criminal restraint as a lesser-included offense of
kidnapping. The jury convicted defendant of first-degree
kidnapping and first-degree aggravated sexual assault. The
Appellate Division reversed the kidnapping conviction, holding
that the trial court had improperly declined to give the
criminal-restraint charge, because in the Appellate Division's
view the evidence provided a basis for the charge and defendant
had requested it.
265 N.J. Super. 577, 590 (1993).
A Union County grand jury indicted defendant on charges of
first-degree kidnapping, contrary to N.J.S.A. 2C:13-1b, and
first-degree aggravated sexual assault, contrary to N.J.S.A.
2C:14-2a, in connection with the abduction and rape of a
thirteen-year-old girl. The victim, M.C., testified at trial
that defendant had seized her as she was walking to school and
had carried her across the street to the front of an undeveloped
lot. Defendant threw M.C. to the ground and struck her several
times in the face. He then dragged her behind the foliage of the
densely wooded lot to a spot from which she could not see the
street, and there he raped her. A witness, Judy Barlow,
testified that she had observed defendant from her apartment
window carry M.C. across the street, throw her to the ground, and
strike her in the face. Barlow left the window to call the
police. When she returned, she could no longer see defendant and
M.C. but could hear screams and muffled noises emanating from the
shrubbery of the lot.
Officer Gilliam, who was patrolling in the area, responded
to Barlow's call within minutes. Gilliam testified that when he
arrived at the wooded lot, he did not see defendant and the
victim from the street. Gilliam covertly entered the shrubbery
and observed defendant on top of M.C. Unsure whether defendant
was armed, Gilliam retreated to call for assistance and then
reentered the wooded area. At that point defendant appeared to
hear the officer because he quickly stood up and ran out of the
lot. Gilliam, on foot, pursued defendant, who at one point "ran
right out of his black shorts," but then Gilliam lost sight of
defendant when he entered an apartment building. Another police
officer apprehended defendant on a street behind the apartment
building, and testified at trial that when apprehended defendant
had pieces of leaves and shrubbery in his hair and on his clothes
and wore only undershorts below the waist. Gilliam identified
defendant at the scene and at trial as the same man he had
observed on top of the victim in the wooded lot and as the same
man he had closely pursued.
While the police officers were chasing defendant, M.C. left
the wooded area and encountered a private ambulance that had
responded to the scene. M.C. told an ambulance worker that a man
had followed her, had picked her up off the street, and had
dragged her into the wooded area, where he had raped her. The
ambulance, at the direction of a police detective, took M.C. to
the street where the police officers had detained defendant. She
identified defendant as the man who had seized and assaulted her.
The kidnapping statute requires that a removal be
accomplished by force, threat, or deception, or, in the case of a
child under fourteen years old, without the consent of a parent,
N.J.S.A. 2C:13-1d. The parties stipulated at trial that the
parents of M.C. did not consent to her being removed from the
street. Defendant's defense at trial was misidentification. He
testified that he had been walking to his brother's house, the
address of which he did not know, when a police officer had come
up behind him and had struck him over the head with a night
stick. Defendant, fearing for his safety, had begun running,
with the officer in pursuit. Defendant testified that at one
point he had hidden in some bushes to avoid being captured.
Defendant denied having carried, struck, or raped M.C., and
disclaimed any knowledge of the wooded lot where the sexual
assault occurred.
Prior to jury deliberations, defense counsel requested that
the court charge the jury on third-degree criminal restraint,
N.J.S.A. 2C:13-2, as a lesser-included offense of the first-degree-kidnapping charge on which defendant had been indicted.
The trial court declined to give the requested charge, stating
that it did not find criminal restraint to be a lesser-included
offense of the "kidnapping by asportation" charged in this case,
although the court acknowledged that criminal restraint might be
a lesser-included offense of kidnapping by confinement. The
court further stated, "I don't think there's any facts which
would give the jury the basis to bring that particular statute
into play." The court charged the jury on first- and second-degree kidnapping and on first-degree aggravated sexual assault
and second-degree sexual assault.
The jury convicted defendant of first-degree kidnapping and
first-degree aggravated sexual assault. The trial court, in
accordance with N.J.S.A. 2C:13-1c(2), sentenced defendant on the
kidnapping conviction to life imprisonment with a twenty-five
year parole-ineligibility period. The court merged the
aggravated-sexual-assault conviction into the kidnapping
conviction as required by N.J.S.A. 2C:13-1c(2). The Appellate
Division reversed defendant's kidnapping conviction on the basis
that the trial court had erred in failing to charge the jury at
defendant's request on criminal restraint. 265 N.J. Super. at
590. The Appellate Division determined that regardless of
whether criminal restraint "is an elemental lesser included
offense of the kidnapping for which defendant was indicted," id.
at 587, the trial court should have instructed the jury on
criminal restraint because the defendant had requested the lesser
charge and the evidence provided a basis for the charge. Id. at
590. We granted the State's petition for certification and
denied defendant's cross-petition.
134 N.J. 563 (1993).
N.J.S.A. 2C:1-8e provides that a court "shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." The statute has been characterized and construed as requiring not only a rational basis in the evidence for a jury to convict the defendant of the included offense but requiring also a rational basis in the evidence for a jury to acquit the defendant of the charged offense before the court may instruct the jury on an uncharged offense. See 2 Final Report of the New Jersey Criminal Law Revision Commission, § 2C:1-7 (renumbered when enacted as 2C:1-8) commentary at 26 (1971) ("Subsection e states that the Court shall not charge the jury on an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense."); State v. Sloane, 111 N.J. 293, 299 (1988) ("[W]hen a lesser-included offense charge is requested by a defendant, the trial court is obligated * * * to examine the record thoroughly to determine if there is a rational basis in the evidence for finding that the defendant was not guilty of the higher offense charged but that the defendant was guilty of a lesser-included offense.").
In drafting N.J.S.A. 2C:1-8e, the Criminal Law Revision Commission relied substantially on section 1.07 of the Model Penal Code. See 1 Final Report of the New Jersey Criminal Law
Revision Commission, supra, § 2C:1-7 source at 8. As originally
drafted that Model Penal Code section provided that a court
"shall not charge the jury" on a lesser offense unless a rational
basis exists in the evidence. Prior to adoption of the official
draft, the American Law Institute amended the provision to read
that a court "shall not be obligated to charge the jury." Model
Penal Code and Commentaries § 1.07 cmt. at 134 (Official Draft
and Revised Comments 1985). The drafters added those words "to
allow a court to submit an illogical included offense if the
court believes that it is proper to do so. This, in effect,
recognizes the jury's right to return a compromise verdict * * *
." Ibid. Our Code does not contain the change, and instead
retains the "shall not" language. N.J.S.A. 2C:1-8e. The refusal
to adopt the Model Penal Code amendment reflects "an
unwillingness to accede to the reasoning offered to support the
revision. Accordingly, under our Code it is improper for a trial
court to charge [an offense], even when requested by the
defendant, if there is no evidence in the record to support a * *
* conviction." State v. Crisantos,
102 N.J. 265, 276 (1986).
See also Model Penal Code and Commentaries, supra, § 1.07 cmt. at
135 ("Most courts * * * adhere to the view that it is not proper
for a trial judge to submit a lesser included offense unless some
reasonable interpretation of the evidence would support an
acquittal of the greater inclusive offense and a conviction of
the lesser included offense.").
Thus, our Code follows the earlier form of Model Penal Code
section 1.07(5) (formerly numbered 1.08(5)). The commentary to
the original Model Penal Code draft discusses the rationale and
application of that section:
Where the proof goes to the higher inclusive
offense and would not justify any other
verdict except a conviction of that offense
or an acquittal, it would be improper to
instruct the jury with respect to included
offenses. Instructions with respect to
included offenses in such cases might well be
an invitation to the jury to return a
compromise or otherwise unwarranted verdict.
The submission of an included crime is
justified only where there is some basis in
the evidence for finding the defendant
innocent of the crime charged and yet guilty
of the included crime. The presence of such
evidence is the determinative factor. For
example, if the prosecution's evidence tends
to show a completed robbery and there is no
conflicting evidence relating to elements of
the crime charged, a contention that the jury
might accept the prosecution's evidence in
part and might reject it in part ought not to
be sufficient.
[Model Penal Code § 1.08 cmt. at
42-43 (Tentative Draft No. 5, 1956)
(citations omitted).]
Our Code regards an offense as included within the charged
offense when:
(1) It is established by proof of the same or
less than all the facts required to establish
the commission of the offense charged; or
(2) It consists of an attempt or conspiracy
to commit the offense charged or to commit an
offense otherwise included therein; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of
culpability suffices to establish its
commission.
A trial court's process for determining whether it can instruct a
jury on an uncharged included offense differs depending on
whether the State or the defendant has requested the charge.
N.J.S.A. 2C:1-8d, which supplies the above definition of an
included offense, authorizes a court to charge a jury on an
unindicted offense, over the defendant's objection, if the
offense is "included" in an offense for which the defendant was
indicted. The statute implicitly concludes that when a trial
court charges a jury on an included offense, it satisfies the
notice and due-process concerns of article I, paragraph 8 of the
New Jersey Constitution, which states: "No person shall be held
to answer for a criminal offense unless on the presentment or
indictment of a grand jury." See Cannel, New Jersey Criminal
Code Annotated, comment 12 on N.J.S.A. 2C:1-8d (1993); Model
Penal Code and Commentaries, supra, § 1.07 cmt. at 130 n.111 ("A
defendant is presumed to have notice that he may be convicted of
any offense included in the offense charged."); see also State v.
LeFurge,
101 N.J. 404, 415-16 (1986) (holding that N.J.S.A. 2C:1-8d(2) constitutes express notice that defendant may be charged
with conspiracy as included offense consistent with notions of
due process and fairness); State v. Battle,
256 N.J. Super. 268,
281 (App. Div.) ("In the absence of a valid waiver, the
submission to the jury of an offense which is not a lesser
included offense violates a defendant's state constitutional
right * * * ."), certif. denied,
130 N.J. 393 (1992); State v.
Graham,
223 N.J. Super. 571, 577 (App. Div. 1988) ("[T]he New
Jersey Constitution bars conviction of the lesser included
offense unless the grand jury intended that result and the
defendant had fair notice that he was being tried for that
offense.").
On the other hand, when a defendant requests a charge, "to
give the jury a chance to convict on a lesser charge," Cannel,
supra, comment 13 on N.J.S.A. 2C:1-8e, the law's concern is not
notice to the defendant but whether the evidence provides a
rational basis for the charge:
[W]here the defendant has not requested the
charge, the existence of a lesser included
offense should be analyzed largely on the
basis of elements in the indictment to make
sure those elements are "included" in the
indictment so that the defendant has had fair
notice of potential liability on the charge.
Where the defendant requests the charge, on
the other hand, analysis should focus on
facts to ensure that there is a rational
basis for a jury to reject the greater charge
and convict of the lesser * * * .
Accordingly, when a defendant requests a charge to the jury on a lesser offense, our case law has held that whether the lesser offense is strictly "included" in the greater offense, as defined by N.J.S.A. 2C:1-8d, is less important to a trial court's determination to charge the offense than whether the evidence presents a rational basis on which the jury could acquit the
defendant of the greater charge and convict the defendant of the
lesser. See State v. Purnell,
126 N.J. 518, 531, 534 (1992)
(holding that defendant was entitled to felony-murder charge,
although not strictly speaking lesser-included offense of
murder); State v. Mancine,
124 N.J. 232, 265 (1991) (Stein, J.,
concurring) (stating that "in certain circumstances, subject to
the requirements of fair notice, an offense not meeting the
Code's definition of lesser-included offense should be charged to
the jury if it is supported by the evidence"); Sloane, supra, 111
N.J. at 300 (stating that N.J.S.A. 2C:1-8d is "not all-encompassing" and categories of lesser-included offenses are "not
water-tight compartments," so that offenses other than those
encompassed by that statute may be lesser-included and properly
charged to jury); Battle, supra, 256 N.J. Super. at 281 ("[T]he
failure to submit a lesser offense to the jury which does not
satisfy the Code's definition of a lesser-included offense may
under some circumstances violate the due process guarantees of
the federal and state constitutions."); see also Model Penal Code
and Commentaries, supra, § 1.07 cmt. at 132 ("[C]ourts have taken
the position that while the Constitution requires that the
prosecution be limited to those offenses of which the defendant
had notice, it does not require that the defendant be so limited,
and have held that the defendant is entitled to an instruction on
a lesser offense, whether included or not, whenever under the
evidence a jury may find him guilty of the lesser and not guilty
of the greater offense.").
Although we have held that the determination of whether an
offense qualifies as lesser included within the definition of
N.J.S.A. 2C:1-8d is less significant when the defendant, as
opposed to the prosecutor, requests the charge, a trial court
cannot charge a jury on any offense requested by the defendant or
suggested by the evidence. A trial court should not "scour the
statutes to determine if there are some uncharged offenses of
which the defendant may be guilty. The prosecutor has the
primary charging responsibility, and the role of the court,
within constitutional limitations, is to implement the statutory
pattern of the Code for charging and prosecuting criminal
offenses." Sloane, supra, 111 N.J. at 302; see also State v.
Smith, ___ N.J. ___ (1994) (holding defendant indicted for armed
robbery not entitled to instruction on theft of services, such
offense constituting neither lesser-included offense nor lesser
related offense but separate uncharged harm).
The Model Penal Code and our Code do not address whether a
court's failure to submit a lesser offense to the jury when
requested by the defendant and warranted by the evidence
constitutes reversible error. Although "[s]ome courts hold that
such a failure is not reversible error since the jury may either
convict or acquit of the offense charged and the substantial
rights of the defendants are not affected," Model Penal Code and
Commentaries, supra, § 1.07 cmt. at 135-36, our Court has
determined that failure to instruct the jury at the defendant's
request on a lesser charge for which the evidence provides a
rational basis warrants reversal of the defendant's conviction.
See Crisantos, supra, 102 N.J. at 273. A defendant is entitled
to an instruction on a lesser offense supported by the evidence
regardless of whether that charge is consistent with the theory
of the defendant's defense. State v. Powell,
84 N.J. 305, 317
(1980); State v. Hollander,
201 N.J. Super. 453, 473 (App. Div.),
certif. denied,
101 N.J. 335 (1985). However, sheer speculation
does not constitute a rational basis. See State v. Darrian,
255 N.J. Super. 435, 446 (App. Div.), certif. denied,
130 N.J. 13
(1992); State v. Mendez,
252 N.J. Super. 155, 159-60 (App. Div.
1991), certif. denied,
127 N.J. 560 (1992). The evidence must
present adequate reason for the jury to acquit the defendant on
the greater charge and to convict on the lesser.
In Crisantos, supra, we held that the trial court had not
erred in failing to charge the jury on passion/provocation
manslaughter at defendant's request because that charge was "not
only inconsistent with the defendants' testimony; it [was] also
inconsistent with the State's version of the homicide and [was]
substantiated by no testimony in the record." Id. at 280.
Comparatively, in Sloane, supra,
111 N.J. 293, we concluded that
the trial court had improperly declined to instruct the jury at
the defendant's request on a lesser aggravated-assault charge.
The trial court had concluded that the victim's stab wound in the
arm had constituted "serious bodily injury," defined by N.J.S.A.
2C:11-1b as "bodily injury which creates a substantial risk of
death or which causes serious, permanent disfigurement, or
protracted loss or impairment of the function of any bodily
member or organ," and, therefore, had refused to charge the jury
on any offense less than second-degree aggravated assault. Id.
at 297. After examining the legislative scheme for criminalizing
assault, we stated that the court's single charge "was too tight
a fit for the facts, given the legislative grid of criminal
culpability, which depends on a jury determination of various
elements of the offense." Id. at 298. We reversed the
defendant's second-degree aggravated-assault conviction because
the proofs suggested that the jury could have found that the
injury suffered by the victim was not "serious bodily injury" but
the lesser "bodily injury," warranting a charge on third-degree
aggravated assault. Id. at 298-99.
Defendant was indicted on charges of first-degree
kidnapping, based on his unlawful removal of M.C., and of first-degree aggravated sexual assault. Defendant requested that the
trial court also charge the jury on the third-degree offense of
criminal restraint. The kidnapping statute, with regard to a
non-ransom kidnapping, provides:
A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a
substantial period, with any of the following
purposes:
(1) To facilitate commission of any
crime or flight thereafter;
(2) To inflict bodily injury on or
to terrorize the victim or another;
or
(3) To interfere with the
performance of any governmental or
political function.
Kidnapping is a crime of the first degree unless the actor
"releases the victim unharmed and in a safe place prior to
apprehension," in which case it is a crime of the second degree.
N.J.S.A. 2C:13-1c(1). The kidnapping statute provides for an
extended term of twenty-five years to life imprisonment with
twenty-five years parole ineligibility for a defendant who
commits a sexual assault against a kidnapping victim who is less
than sixteen years old. N.J.S.A. 2C:13-1c(2)(a). That statute,
however, requires that the court merge the sexual-assault
conviction into the kidnapping conviction for sentencing
purposes.
"It is evident that the legislature intended harsh treatment
for kidnappers; it is further evident that by maximizing the
kidnapper's incentive to return the victim unharmed, the
legislature realized that the risk of harm attendant upon
isolation is the principal danger of the crime." State v.
Masino,
94 N.J. 436, 446 (1983). The drafters of the Model Penal
Code, after which our kidnapping statute is patterned, also
focused on the additional harm that can result when a defendant
isolates a victim:
[I]f the offense is properly defined so as to
be limited to substantial isolation of the
victim from his normal environment, it
reaches a form of terrifying and dangerous
aggression not otherwise adequately punished.
* * * A disposition to violence or theft in
an actor who takes the trouble to set the
scene so that he will have a relatively free
hand to deal with his isolated victim is
obviously more likely to lead to more
dangerous consequences. A final reason for
retaining kidnapping as a distinct offense,
and for making it a first degree felony under
some circumstances, is that an isolated
victim may be killed and disposed of in such
a way as to make proof of murder impossible,
although the fact of abduction with criminal
purpose is clear.
This Court has determined, with regard to the language of the
kidnapping statute, that
one is transported a "substantial distance"
if that asportation is criminally significant
in the sense of being more than merely
incidental to the underlying crime. That
determination is made with reference not only
to the distance travelled but also to the
enhanced risk of harm resulting from the
asportation and isolation of the victim.
That enhanced risk must not be trivial.
[Masino, supra, 94 N.J. at 447.]
"[A] 'substantial distance' [is] one that isolates the victim and
exposes him or her to an increased risk of harm." Id. at 445.
In Masino, we concluded that the defendant's pulling the
victim from her car and dragging her across the road and down an
embankment to a pond where he sexually assaulted her could
constitute removal of the victim a substantial distance and
therefore sustained the defendant's kidnapping conviction. Id.
at 437-38. See also State v. La France,
117 N.J. 583 (1990)
(holding that detention of victim for one-half hour in his home
while defendant raped victim's wife constituted confinement for
substantial period warranting conviction of first-degree
kidnapping).
A person commits the third-degree crime of criminal
restraint if the person "knowingly * * * [r]estrains another
unlawfully in circumstances exposing the other to risk of serious
bodily injury [or] [h]olds another in a condition of involuntary
servitude." N.J.S.A. 2C:13-2. The criminal-restraint statute
"provides intermediate penalties between those for kidnapping and
false imprisonment * * * . [I]n view of the fact that the victim
is not isolated, in danger of death, nor necessarily terrorized,
classification of this offense as a crime of the third degree
seems adequately severe." 2 Final Report of the New Jersey
Criminal Law Revision Commission, supra, § 2C:13-2 commentary.
According to the commentary accompanying section 212.2 of the
Model Penal Code, after which our criminal restraint statute is
modeled,
Section 212.2 is distinguished from kidnapping either by the lack of substantial removal or confinement, as required for the greater offense, or by the absence of any of the specified kidnapping purposes. Thus, a person who restrains another for an insubstantial period of time or in a public
place may be guilty of [criminal] restraint
but not of kidnapping. In either case, the
actor has not effected that substantial
isolation of his victim from the protection
of the law which is the hallmark of the crime
of kidnapping. Additionally, this section
comes into play for substantial removal or
confinement that is not accompanied by one of
the designated kidnapping purposes. Thus,
for example, the actor who uses a gun to
force another to drive him somewhere engages
in unlawful restraint under circumstances
exposing the victim to risk of serious bodily
harm. If he does so in order to terrorize
the victim or in order to commit or escape
from a felony, he may be convicted of
kidnapping * * * . But if his purpose is
merely to obtain transportation, he is liable
only for the lesser offense of [criminal]
restraint.
[Model Penal Code and Commentaries,
supra, § 212.2 cmt. at 240-41.]
See also La France, supra, 117 N.J. at 590-91 ("Consistent with
the Model Penal Code's graded scheme of dealing with kidnapping
and related offenses, our Code provides that when the defendant
does not act with any of the stated purposes under N.J.S.A.
2C:13-1, the restraint of liberty is a third-degree crime if it
exposes another to the risk of serious bodily injury or a
condition of servitude.").
The determination of whether an offense is lesser included, as defined by N.J.S.A. 2C:1-8d, cannot be made in the abstract. A court must look at the version of the offense charged established by the record before it. See Mancine, supra, 124 N.J. at 264 (Stein, J., concurring) (stating that "the statutory definition of an 'included offense' refers back to the offense for which defendant was indicted"). Kidnapping by removal a substantial distance to commit an aggravated sexual assault almost invariably involves "restrain[ing] another unlawfully in circumstances exposing the other to risk of serious bodily injury * * * ." N.J.S.A. 2C:13-2. Because it can be "established by proof of the same or less than all the facts required to establish the commission of the offense charged," N.J.S.A. 2C:1-8d(1), in this case kidnapping by asportation to facilitate the commission of an aggravated sexual assault, we conclude that criminal restraint is a lesser-included offense of the indicted offense.
That conclusion, however, does not resolve the case before us. For a trial court to charge a jury on an unindicted offense, the court must conclude not only that the offense is included in the charged offense but also that the evidence at trial presents a rational basis for the jury to acquit the defendant of the greater offense and convict him or her of the lesser. As discussed above, the commentary to the Model Penal Code states that criminal restraint differs from kidnapping in that the lesser offense does not require "substantial" unlawful removal or confinement for one of the stated kidnapping purposes, but requires merely unlawful restraint in circumstances "exposing the other to risk of serious bodily injury." Thus concerning the proofs in this case, for the jury to have acquitted defendant of
kidnapping and convicted him of criminal restraint it would have
had to find that defendant did not remove the victim, M.C., a
substantial distance from the vicinity where she was found, or
that he did not remove her with the purpose of facilitating
commission of the sexual assault or the flight thereafter.
The record contains no evidence that defendant moved the
victim other than for the purpose of committing a crime or
fleeing thereafter. Once defendant took the victim from the
public street into the seclusion of the wooded lot, he
immediately proceeded to pull down the victim's pants and
underwear and to rape her. Neither the State, defendant, nor
any witness put forth any reason for the abduction of M.C. other
than to facilitate the commission of the sexual assault in an
area isolated from the street. Thus, the evidence demonstrates
no rational basis for the jury to acquit defendant of kidnapping
based on absence of the requisite criminal purpose.
With regard to movement of the victim a substantial
distance, the trial court instructed the jury in accordance with
Masino, supra, 94 N.J. at 447, that
substantial distance is not measured in feet, yards or miles nor by any other standard of linear measurement. Rather, a substantial distance is one [that] is sufficiently criminally significant, in that it is more than incidental to the underlying crime and substantially increases the risk of harm to the victim. That increased risk of harm must not be trivial. If the victim is removed only a slight distance from the vicinity from which he or she was removed and that such removal does not create the isolation and increased risk of harm that are at the heart
of the kidnapping statute, you should not
convict the person of kidnapping.
Defendant encountered M.C. on John Street. He followed her to 7th Street, where he grabbed her on the sidewalk from behind and carried her struggling to the other side of the street. After subduing her with blows to the face, defendant dragged M.C. by her shirt behind the dense woods of an abandoned lot. From that location, M.C. could not see the street. Neither Barlow, the witness to M.C.'s abduction, nor the investigating police officer could see M.C. once defendant had removed her to the wooded lot. Significantly, no evidence adduced at trial contested either the location from which M.C. had been seized, the distance she had been carried, or the approximate area of the lot to which she had been carried. Those facts were undisputed, defendant's contention being that the crime had been committed by some other person. Nor was evidence offered from which the jury could have concluded that M.C.'s removal had not been criminally significant. She was taken from the public street, in full view of residents in the neighborhood, and dragged to the woods of an abandoned lot where neither she nor defendant could be observed. M.C. was fortunate that a witness saw defendant seize and strike her and that that witness, Barlow, had called the police. That Barlow observed the initial seizure of M.C., however, does not diminish the danger of the removal of M.C. to an otherwise isolated location. M.C. remained unaware during the kidnapping and sexual assault that Barlow had witnessed her abduction and
that police had been dispatched. As the commentary to the Model
Penal Code recognizes, the terror of being snatched from the
presumed safety of a public street and taken to a secluded area
away from the protections of society, where a defendant may
obtain a "free hand to deal with his isolated victim," can
constitute a harm distinct from that inherent in a sexual
assault. See Model Penal Code § 212.1 cmt. at 15 (Tentative
Draft No. 11, 1960).
Although in many instances the movement accompanying a
sexual assault may be incidental to the assault and therefore not
within the ambit of the kidnapping statute, courts have
recognized that movement can constitute a separate danger that
substantially increases the risk of harm to the victim. See,
e.g., State v. Cole,
120 N.J. 321, 335 (1990); Masino, supra, 94
N.J. at 446; People v. Sherrod,
581 N.E.2d 53, 57-58 (Ill. App.
Ct.) (holding asportation of victim, who was forced off street
into alley and garage and there sexually assaulted, not inherent
in sexual assault and constituted separate danger punishable as
kidnapping), appeal denied,
584 N.E.2d 137 (Ill. 1991). Thus,
although the Code "distinguishes kidnapping from conduct that is
merely incidental to the underlying crimes[, it] does not make
kidnapping a 'free crime' when it accompanies another violent
crime such as rape or robbery." La France, supra, 117 N.J. at
590; see State v. Tronchin,
223 N.J. Super. 586, 594 (App. Div.
1988) ("[W]here an offender entices a victim into a car by
deception, transports the victim to a remote place without
opportunity for the victim's escape and commits sexual assault,
all of the elements of kidnapping may be established."); State v.
Bryant,
217 N.J. Super. 72, 80-82 (App. Div.) (holding that
binding and gagging of robbery victims to facilitate defendant's
flight from premises constituted more than confinement incidental
to underlying robbery and supported kidnapping conviction),
certif. denied,
108 N.J. 202, cert. denied,
484 U.S. 978,
108 S.
Ct. 440,
98 L. Ed.2d 488 (1987); see also Cole, supra, 120 N.J.
at 335 (holding defendant who forced victim to drive to wooded
area near deserted warehouse where he raped and robbed her not
entitled to merger of convictions of kidnapping, robbery,
aggravated assault, and aggravated sexual assault).
Non-ransom kidnapping often precedes the commission of
another crime. Indeed, the Code requires that such kidnapping be
committed with the purpose of committing another unlawful act.
N.J.S.A. 2C:13-1b(1)-(3). Furthermore, the Code specifically
provides for an extended term of up to life imprisonment when a
defendant kidnaps and sexually assaults a child under the age of
sixteen, thereby recognizing that those harms, although separate,
often occur together. See N.J.S.A. 2C:13-1c(2)(a). That statute
merges only for sentencing purposes the sexual-assault conviction
into the kidnapping conviction. See ibid.
Because no evidence adduced at trial contradicted the
evidence demonstrating that defendant had moved M.C. a
substantial distance for the purpose of facilitating the
commission of the sexual assault, we are unable to conclude that
the record discloses a rational basis for the jury to reject the
first-degree crime of kidnapping and to convict defendant of the
third-degree crime of criminal restraint. Accordingly, the trial
court did not err in declining to charge the jury on criminal
restraint.
We reverse the judgment of the Appellate Division and
reinstate the conviction for first-degree kidnapping.
Justices Clifford, Handler, Pollock, O'Hern, and Garibaldi join in this opinion. Chief Justice Wilentz did not participate.