State v. Ibabao
Case # A155420
Full Text of Opinion: http://www.publications.ojd.state.or.us/docs/A155420.pdf
Defendant Ibabao and three friends broke into a home through an attached garage that had been modified for use as a recreation and sleeping room. In the garage, they encountered three of the victims and forced them at gunpoint into a bedroom in the house where the fourth victim was sleeping. Later, they found a fifth victim in another bedroom, and they forced him at gunpoint into the bedroom with the other victims. Ibabao was ultimately convicted of, among other things, four counts of kidnapping in the fourth degree. Ibabao appeals the kidnapping convictions, arguing that the record does not contain sufficient evidence to establish the asportation element of kidnapping.
To prove asportation, the State must prove that Ibabao “change[d] the position of the victim such that, as a matter of situation and context, the victim’s ending place [was] qualitatively different from the victim’s starting place” and that the taking was not “only incidental” to another crime. State v. Opitz, 256 Or App 521, 533, 301 P3d 946 (2013). The Court of Appeals notes that it has in the past held that moving a victim between rooms within a residence does not constitute asportation when the movements had “no effect on the extent to which [the] defendant interfered with the victim’s personal liberty” and was “in the course and in the furtherance of” the defendant’s ongoing assault of the victim. Id. at 534-36.
Here, Ibabao’s moving the victims from one bedroom to another does not constitute asportation because their starting and ending places were not qualitatively different and because the movements were incidental to the robbery. Accordingly, the kidnapping convictions are reversed.