The appellate panel continued in relevant part: Putting aside the prosecution theory set forth in the charging instrument, we turn our attention to the actual proofs the State presented at trial. We have reviewed the trial record closely, focusing especially on the victim’s testimony, for any evidence that might reasonably suggest that C.M.’s confinement was in any respect independent of the sexual attack that defendant inflicted upon her, or else exposed her to a greater risk of harm than the risk inherent in the sexual and physical abuse she endured throughout this episode. Even when viewing the evidence in the light most favorable to the State, we find nothing in the record that refutes defendant’s contention that C.M.’s confinement was merely incidental to the sex crime she endured.
First, there is no evidence of any interruption in the ongoing sexual abuse during the period of confinement. In other words, so far as the trial record shows, there was never a point in time when C.M. was being restrained but was not being sexually abused. That circumstance supports the conclusion that the same force and threats were used to confine her and to sexually abuse her.
Furthermore, defendant never moved the victim off the porch. We recognize that the State did not present this case as a “substantial distance” type of kidnapping. Even so, the absence of any displacement is relevant to the critical question whether defendant did anything to isolate the victim or otherwise render her more vulnerable to harm. See, e.g., State v. Purnell, (App. Div. 2007) (removing the victim up an additional flight of stairs was not merely incidental to the underlying sexual crimes because it exposed her to an increased risk of harm).
Here, the difference between a conviction for aggravated sexual assault and kidnapping is significant. Under most circumstances, the maximum sentence for an aggravated sexual assault is twenty years. The maximum sentence for a kidnapping is thirty years.
