The Court continued in relevant part: The circumstances of the removal of C.M.’s clothing is thus distinguishable from the facts in Arp. In that case, the trial court observed that, “defendant’s intention to confine the victim in the car so that she could not escape or seek help is apparent from the fact that he allegedly forced her to remove her clothing before going out to urinate. Presumably, he believed that this would force her to return to the car.” In the present case, in contrast, defendant cut off the victim’s dress during and as part of the sexual abuse. There is no evidence that he ever permitted her to leave the porch to relieve herself or for any other reason. We therefore conclude that on the facts of the case before us, the act of stripping off C.M.’s dress did not convert the alleged rape into a kidnapping.
So too, C.M. was never bound, gagged, and left behind by her assailants. So far as the trial record indicates, defendant and co-defendant Ortiz never left the porch before C.M. finally escaped, and thus they never left C.M. behind in a vulnerable condition as occurred in Bryant and Denmon. Rather, the sexual predation continued right up to the moment C.M. fled from the porch with the assistance of the passerby who came to her rescue.
In sum, considering all of the evidence adduced at trial, it is clear to us that the force and threat of force defendant applied against C.M. to restrain her movements was indistinguishable from the force and threats he used to commit the sexual crime he was separately charged with. To be sure, throughout her extended confinement, C.M. remained at great risk of harm, but that risk was of further sexual and physical abuse by defendant. The danger she faced from confinement, in other words, was not independent of the danger inherent in the underlying sex crime. While C.M. remained vulnerable to repeated, indeed incessant criminal attack throughout her hours-long ordeal, her isolation and vulnerability was coextensive and coterminous with the sexual abuse. There simply were no acts committed by defendant to restrain the victim that went beyond the acts necessary to accomplish the sex crime with which defendant was separately charged. For that reason, we are constrained by the binding precedents interpreting N.J.S.A. 2C:13-1(b) to conclude that the State did not produce sufficient evidence for the kidnapping charge to be considered by the jury, and therefore, the trial court erred by not entering a verdict of acquittal on that charge at the end of the State’s case.
When a Court uses the term “constrained”, it usually signals a lack of sympathy for the defendant and an abundance of sympathy for the victim. Here, the underlying facts and details of the prolonged assault are quite disturbing.
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