State v. Guerrero

384                     March 6, 2024                   No. 157

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                  STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
             WILLIAM JAMES GUERRERO,
      aka William Guerrero, aka William J. Guerrero,
           aka William Gurrero, aka U438126,
                  Defendant-Appellant.
             Clackamas County Circuit Court
                  21CR40711; A178684

   Katherine E. Weber, Judge.
   Submitted January 24, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kirsten M. Naito, Assistant Attorney
General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
   AOYAGI, P. J.
   Affirmed.
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 (2024)   385
386                                         State v. Guerrero

        AOYAGI, P. J.
         Defendant was convicted of second-degree kidnapping, ORS 163.225, strangulation constituting domestic
violence, ORS 163.187, fourth-degree assault constituting
domestic violence, ORS 163.160, and menacing constituting
domestic violence, ORS 163.190. On appeal, he challenges
his kidnapping and menacing convictions, arguing that the
evidence was legally insufficient to prove those crimes and
that the trial court therefore erred in denying his motions
for a judgment of acquittal. We conclude that the evidence
was legally sufficient and, accordingly, affirm.
         On review of the denial of a motion for a judgment of
acquittal, we examine the evidence “in the light most favorable to the state to determine whether a rational trier of
fact, accepting reasonable inferences and reasonable credibility choices, could have found the essential element of the
crime beyond a reasonable doubt.” State v. Cunningham, 

, 

 (1994), cert den, 

 (1995).
Accordingly, we describe the trial evidence in the light most
favorable to the state.
         In the summer of 2021, defendant was living in a
motorhome on a large property in a remote area in Sandy.
Marino owned the property and lived in a house on the property. Defendant’s girlfriend, W, often visited defendant.
         On the morning of August 21, around 6:45 a.m.,
Marino heard defendant’s dog barking and, concerned about
a possible intruder or coyotes, went outside with a loaded
handgun to investigate. He heard a commotion coming from
the motorhome. He could hear W screaming and defendant
hitting her. Marino approached the side door of the motorhome, which was open, and saw defendant hitting and choking W while she pleaded for him to stop. Marino tried unsuccessfully to get their attention. Marino fired a warning shot
into the air, but even that did not get their attention. Marino
returned to his house and asked his girlfriend to call 9-1-1.
Marino subsequently went back outside.
       At 7:01 a.m., defendant “pull[ed]” and “dragg[ed]” W
from the motorhome to a nearby pole barn that was used
as a shop and where defendant parked his Jeep. W was
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 (2024)                             387

twisting, saying “stop,” and “trying to get away.” Pulling
her by the neck, defendant forced W into the shop, opened
the bay door, and pulled W toward the Jeep. Marino moved
his pickup truck to try to block the Jeep from leaving, but
defendant maneuvered the Jeep around the truck. At that
point, Marino exited the truck and shot the Jeep’s tire. The
Jeep stopped, and W jumped out and ran toward the house.
Defendant briefly chased W, then turned and ran at Marino.
He was extremely angry and told Marino to mind his own
business. Marino fired two warning shots, but defendant
did not stop, so Marino fired two more shots, hitting defendant in the leg. Defendant finally appeared to snap out of
his rage. Law enforcement had not yet arrived, so Marino’s
girlfriend drove defendant to the hospital. After law enforcement arrived, W was transported to the hospital by ambulance. W’s injuries included contusions, scrapes, bruised
hands, petechiae in her eye and behind her ear, a broken
nose, and swelling on the back of her head.
         At the time of the incident, the motorhome had been
parked on Marino’s property for several months, the rear
tires were flat, objects were strewn around the side and rear,
an electric cord was running to the motorhome, numerous
objects were piled on the driver’s seat, and the driver’s front
windows were blocked.
        Based on the August 21 incident, defendant was
charged with kidnapping, strangulation, assault, and menacing. At the close of the state’s case-in-chief, defendant
moved for a judgment of acquittal on the kidnapping and
menacing charges, which the trial court denied. A jury
found defendant guilty on all charges.
         On appeal, defendant raises two assignments of
error, asserting that the trial court erred in denying his
motions for a judgment of acquittal on the kidnapping and
menacing charges. We address each count in turn.
         Second-degree kidnapping may be committed by
asportation (“[t]ak[ing] the person from one place to another”)
or confinement (“[s]ecretly confin[ing] the person in a place
where the person is not likely to be found”). ORS 163.225(1).
Defendant was charged with kidnapping by asportation.
388                                         State v. Guerrero

That crime occurs when a person, “with intent to interfere
substantially with another’s personal liberty, and without
consent or legal authority, … [t]akes the person from one
place to another[.]” ORS 163.225(1)(a). Defendant does not
contest that the evidence was legally sufficient to prove
the intent element of second-degree kidnapping, i.e., that
he intended to interfere substantially with W’s liberty. See
State v. Wolleat, 

, 

 (2005) (“[T]he
liberty interest that [ORS 163.225(1)] protects from interference is the interest in freedom of movement,” and “for
the interference to be substantial, a defendant must intend
either to move the victim a ‘substantial distance’ or to confine the victim for a ‘substantial period of time.’ ”); State
v. Anderson, 

, 

 (2023)
(addressing the intent element for second-degree kidnapping). Rather, he argues that the evidence was insufficient
to prove the conduct element of second-degree kidnapping,
i.e., asportation. We therefore limit our discussion to the
conduct element.
         To prove asportation, the state had to prove that
defendant moved W “from one place to another” within the
meaning of ORS 163.225(1)(a). A defendant moves a person
“from ‘one place’ to ‘another’ only when the defendant changes
the position of the victim such that, as a matter of situation
and context, the victim’s ending place is qualitatively different from the victim’s starting place.” State v. Sierra, 

, 

 (2010), adh’d to as modified on recons,

, 

 (2011). Someone who is moved a
substantial distance is “more likely” to end up in “another”
place, but “another important factor in determining whether
the defendant moved the victim ‘from one place to another’ is
whether the movement served to limit the victim’s freedom of
movement and increase the victim’s isolation.” State v. Walch,

, 

 (2009). Thus, for example, in
Walch, the evidence was legally sufficient to prove asportation where the defendant moved the victim from her open
driveway into his car trunk. 

.
         Defendant argues that the evidence in this case was
insufficient to prove asportation. He argues that the Jeep
was not a qualitatively different place from the motorhome,
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 (2024)                            389

because the motorhome and the Jeep “were on the same
property and were equally secluded and restrictive of the
victim’s personal liberty,” and both were “mobile.” Defendant
further argues that, because Marino shot the Jeep’s tire,
forcing defendant to stop driving and providing W the
opportunity to escape, defendant never got farther than the
driveway and never transported W off the property. The
state responds that a reasonable factfinder could find that
defendant moved W to a qualitatively different place, either
when he dragged her to the shop or when he dragged her
into the Jeep.
         We agree with the state. The Jeep was a qualitatively different place from the motorhome, because being in
the Jeep isolated W in a way that made it more difficult for
Marino to intervene on her behalf, and because the Jeep
was mobile in a way that the motorhome was not due to the
motorhome’s flat back tires, electrical connection, inaccessible driver’s seat, and covered driver’s windows. The evidence
was therefore sufficient to prove that defendant moved W
“from one place to another” within the meaning of ORS
163.225(1)(a). The trial court did not err in denying defendant’s motion for a judgment of acquittal on the second-degree kidnapping charge.
          Turning to the menacing charge, “[a] person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear
of imminent serious physical injury.” ORS 163.190(1).
Defendant contends that the evidence in this case was insufficient to prove the intent element of menacing, i.e., that he
intended to place W in fear of imminent serious physical
injury. Defendant argues that “mere evidence of defendant’s
assaultive conduct” is insufficient to prove the intent necessary for menacing and that, even if a reasonable person in
W’s position might fear imminent serious physical injury,
there was no evidence that defendant intended to place
W in fear of imminent serious physical injury. Defendant
also points to the lack of evidence of “threats, implicit or
explicit.” The state responds that, given the totality of the
circumstances, a reasonable factfinder could infer from the
390                                         State v. Guerrero

evidence that defendant intended to instill fear of imminent
serious physical injury in W.
          We again agree with the state. “[A] defendant’s
entire course of conduct may be evidence of that defendant’s
intent to instill fear in the victim.” State v. Theriault, 

, 

 (2019); see also State v.
Simmons, 

, 

 (2022), rev den,

 (2023) (“Ultimately, whether circumstantial evidence is sufficient to support a given inference is a question of law.”). Here, after viciously assaulting and strangling
W—including breaking her nose—defendant dragged W by
her neck out of the motorhome, into the shed, and into his
Jeep, and then attempted to leave the property with her,
at which point Marino would no longer be able to help her.
One reasonable inference that could be drawn from that evidence (viewed in the light most favorable to the state) is that
defendant intended to place W in fear of imminent serious
physical injury, specifically fear that he would again assault
her and cause her serious physical injury as soon as he was
able to isolate her from Marino. That is not the only finding that the jury could have made as to defendant’s intent,
but the record would allow that as one reasonable inference.
The trial court therefore did not err in denying defendant’s
motion for a judgment of acquittal on the menacing charge.
        Affirmed.