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State v. Gerlach

Summarized by: 

Date Filed: 03-13-2013
Case #: A144947
Duncan, J. for the Court; Armstrong, P.J.; and Haselton, C.J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A144947.pdf

Criminal Law: The antimerger statute does not apply to multiple counts of kidnapping where the defendant continues to substantially interfere with the victim's liberty. The kidnapping continues as long as the seizure of the victim continues.

Defendant appealed his conviction of ten crimes including two counts of kidnapping. Defendant forced a ten-year-old girl into his car. He then took her to a remote location where he entered the back seat and sexually assaulted her. Defendant proceeded to get back in the driver's seat and drive toward a third location. The police intercepted Defendant and the girl was recovered. ORS 161.067(3) provides that the same crime perpetrated against the same victim with a significant pause in between constitutes two separate crimes. The State argued that the act of exiting the back seat of the car and re-entering the driver's seat was a significant pause which allowed it to invoke ORS 161.067(3). Defendant argued that the victim must have actually been released or liberated for the crime of kidnapping to end. The Court held that, since kidnapping is a continuing crime, the kidnapping continues as long as the defendant deprives the victim of his or her liberty. As a result, the two counts of kidnapping should have been merged. Reversed and remanded with regard to the two counts of kidnapping; otherwise affirmed.