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Facts: A girlfriend runs out of her house to the neighbor's house to avoid a beating from her live-in boyfriend and the boyfriend follows her to the neighbor's front porch, grabs her, and forcibly carries her back to their house, where he does beat her and refuses to allow her to leave all day.

Question: Is her own house a place where she is not likely to be found? (I think this is a problem for the prosecution)

More Facts: After the beating is over the boyfriend tells the girlfriend "if you call the police I will kill you" and he refuses to allow her to leave.

Question: Abduct by using or threatening to use deadly force, does that part of the definition apply if the threat occurs after the restraint and after the beating? (I think this is a problem too because the definition of abduct does not say it is a continuing course of conduct)

If no, then does the fact he refuses to allow her to leave after the threat was made, change anything? (I think maybe)
 
Posts: 66 | Location: New Braunfels, Texas, USA | Registered: October 04, 2001Reply With QuoteReport This Post
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Retaliation sounds like a better charge.
 
Posts: 2577 | Location: The Great State of Texas | Registered: December 26, 2001Reply With QuoteReport This Post
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Sounds like Unlawful Restraint, Assault-Family Violence, and Terroristic Threat-Family Violence. I think you have to stretch it too much to get a felony out of it.
 
Posts: 1029 | Location: Fort Worth, TX | Registered: June 25, 2001Reply With QuoteReport This Post
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Allison, I don't necessarily agree with the previous responses. The following explains why I don't think that kidnapping is such a stretch:

Kidnapping occurs when the accused "intentionally or knowingly abducts another person." Texas Penal Code �20.03 (a)

�Abduct� means to restrain a person with intent to prevent his liberation by: (A) secreting or holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly force. Texas Penal Code �20.01 (2)

There are generally 2 parts to any crime: the actus rea and mens rea. The actus rea is the physical act committed by the actor while the mens rea is the mental state of the actor.

The act that state has to show is that the defendant restrained a person. �Restrain� means to restrict a person's movements without consent so as to interfere substantially with the person's liberty by moving the person from one place to another or by confining the person. Restraint is �without consent� if it is accomplished by force, intimidation, or deception. Texas Penal Code �20.01 (1).

In kidnapping the mental state, or mens rea, is with intent to prevent liberation by secreting or holding the victim in a place where they are not likely to be found or using or threatening to use deadly force. Therefore, part of the crime of kidnapping is that the Defendant intended to prevent the liberation of victim either by secreting or holding them in a place where the victim is not likely to be found or that the Defendant intended to prevent the liberation of victim either by using or threatening to use deadly force. The State does not have to ever prove that the victim was secreted or held in a place where they were not likely to be found. We also do not have to prove that the defendant used or threatened to use deadly force. All that is necessary is that the Defendant intended to prevent the liberation of the victim by either one of those two methods. This is the intent, not what was actually done. See Brimage v. State, 918 S.W.2d 466 (Tex.Crim.App. 1994).

In your case, it seems pretty clear that the defendant restrained the victim. In addition, the statements that your defendant made after he restrainted the victim indicate that he intended to prevent her liberation either by secreting or holding her in a place where she was not likely to be found or that the Defendant intended to prevent her liberation by using or threatening to use deadly force. It seems like kidnapping to me. Depending on the injuries and type of assault, you might also get to aggravated kidnapping by alleging a deadly weapon.

I hope this helps.
 
Posts: 40 | Location: New Braunfels, Texas, USA | Registered: April 30, 2004Reply With QuoteReport This Post
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Do the act and the criminal intent have to be concurrent? I am pretty sure that there was a Crim Law question on the bar regarding burglary and larceny related to the concurrence of the act and the evil thought accompanying it.

This may not defeat the kidnapping question, but perhaps it should be discussed.
 
Posts: 764 | Location: Dallas, Texas | Registered: November 04, 2003Reply With QuoteReport This Post
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Abduction, unlike burglary, is a continuing offense. A burglary is complete once entry is made with the requisite intent. However, the restraint in abduction does not necessarily "occur" only at one specific time. The victim was restrained from the moment appellant grabbed her and forcibly took her back to the house. The abduction was a continuous, ongoing event. There is no time limit for abduction. So the abduction did not cease once the victim was taken to the house. It continued throughout the entire time she was there until she was released. See Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000)& Weaver v. State, 657 S.W.2d 148, 150 (Tex.Crim.App. 1983).

Therefore, if the defendant formed the intent to prevent the liberation of victim either by secreting or holding her in a place where she was not likely to be found or the Defendant intended to prevent the liberation of the victim either by using or threatening to use deadly force at any time during the abduction, he committed kidnapping.
 
Posts: 40 | Location: New Braunfels, Texas, USA | Registered: April 30, 2004Reply With QuoteReport This Post
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I think Greg is right about Retaliation. That one was not on my radar screen at the time.
 
Posts: 1029 | Location: Fort Worth, TX | Registered: June 25, 2001Reply With QuoteReport This Post
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You'll never make a kidnapping with those facts. Besides, just wait until the affidavit of non-prosecution comes in...i.e. he only did it because he loves me soooooooooo much. Cool
 
Posts: 2577 | Location: The Great State of Texas | Registered: December 26, 2001Reply With QuoteReport This Post
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I suspect that if it makes it past the judge on a motion to quash, a jury will go with you. Check out Megas v. State, 68 SW3d 234. It is about a car, but the logic may be helpful.

It does mean the difference between a first and a third degree. Besides, the third degree felony unlawful restraint with resckless exposure to SBI sounds like it may fit, no matter how much or little injury he caused.

But listen to part of what Gilleland said: file the retaliation and wait for the non-pros affidavit. In the meantime you might get her in front of the grand jury or request an examining trial to lock in her testimony while she is on your side.
 
Posts: 70 | Location: Lockhart, Texas | Registered: October 05, 2004Reply With QuoteReport This Post
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My apprehension in proceeding on a kidnapping or unlawful restraint case is simply based on years of handling similar matters where the proof did not meet the law as the case moved down the road. I would have her commit to the facts in a written or dvd statement regarding the threat(s) and proceed on the retaliation. I would hope that the investigators did so regarding the victim's statement while the victim was still under the influence of the event. I avoid using a grand jury to "lock people in" to their statements.
 
Posts: 2577 | Location: The Great State of Texas | Registered: December 26, 2001Reply With QuoteReport This Post
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I guess my complaint with some of the replies on this topic is that they simply don't address the questions that were asked. That question was whether, under the facts provided, there was a kidnapping. The poster had two areas of concern: 1. Was the house the victim was taken to a place where she was not likely to be found? and 2. Did it matter that the threat occurred after the restraint began?

Several of the responses concern potential evidence at trial and concerns about the victim not sticking with the case. Certainly these are legitimate concerns in any case involving what we commonly call domestic violence. As anyone who handles those type of cases can tell you, the victim often changes their mind prior to trial. However, that is true whether you are charging retaliation, assault, aggravated assault, or kidnapping. So, are we going to refuse to charge any offense that arises in a domestic violence situation just because the victim may later change their mind? The answers to Allison's questions are: 1. It doesn't matter whether or not the house was actually a place where the victim was not likely to be found because that is part of the intent element of kidnapping. and 2. Restraint in kidnapping is continuing so it doesn't matter that the threat was made after the restraint began. Under the facts she gave us, Allison has a kidnapping.
 
Posts: 40 | Location: New Braunfels, Texas, USA | Registered: April 30, 2004Reply With QuoteReport This Post
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