dissenting.
The lead opinion today holds that moving a robbery victim 15 feet during a mutual affray and attempting (unsuccessfully) to force the victim into the open trunk of a car constitutes “tak[ing] the person from one place to another,” a required element of the kidnapping crime defined at ORS 163.225(1)(a). In doing so, the opinion cites (but then sub silentio overrules) relevant precedent. As I hope to show, that is not a defensible course for this court to follow but, even if it were the correct analysis, it answers the wrong question.
The problem here arises out of defendant’s attempt to steal money from the victim. Defendant and his co-conspirators planned to lure the victim onto an unlit lawn and driveway area adjacent to a house, ostensibly to have the victim look at alleged damage to a car that one of the co-conspirators had parked in the driveway. Defendant would then accost the victim and take money that he believed she was carrying.
So much for planning. As it turned out, when defendant accosted the victim in the vicinity of the car, she put up a spirited physical resistance. The struggle moved the parties to the rear of the car, a distance of no more than 15 feet. Defendant, when his other efforts to subdue the victim failed, finally tried to throw her into the trunk of the car. He did not succeed: She continued to fight, and the trunk was already partially filled. Defendant finally let go of the victim and instructed her to go into the house and bring back her money. The “kidnapping” — if any there was — was over.
The crux of the lead opinion’s holding is this:
“[T]he ‘situation’ and ‘context’ * * * surrounding the incident provide support for the jury’s determination that defendant took the victim ‘from one place to another.’ The victim was originally in the driveway, an open area from which she might have run away or been seen by the people inside the house. Defendant attacked the victim and fought *484with her, moving her approximately 15 feet. Defendant then picked the victim up and shoved her into a car, a location (and an object) intended to quickly move people a distance of some miles. Further, defendant not only forced the victim into a car, but into the trunk of a car, a place in which, as the Court of Appeals accurately stated, ‘a human being could be put for almost no innocent purpose.’ * * * Because the context is such that defendant moved the victim from one place (the open driveway) to a qualitatively different, more mobile and isolated place (the trunk of a car), we conclude that the asportation element of the kidnapping statute has been satisfied. Moreover, the 15 feet that defendant moved the victim is several times the distance involved in [State V.] Murray[, 340 Or 599, 136 P3d 10 (2006)] regardless of whether that distance is considered quantitatively ‘substantial.’7 We need not decide whether defendant moved the victim a ‘substantial distance’ * * *.
346 Or at 476 (emphasis in original; citations omitted).
At bottom, the flaw in the lead opinion’s analysis (which concludes that the asportation element of ORS 163.225(l)(a) is met by what it insists on characterizing as a “qualitative difference” between two different places, even if the distance between the two places is not quantitatively substantial) is that it unwittingly conflates the asportation element in ORS 163.225(l)(a) (“takes * * * from one place to another) (emphasis added) with the secreting element of ORS 163.225(1)(6) (“[sjecretly confines the person in a place where *485the person is not likely to be found”) (emphasis added).1 That is evident from the majority’s focus on the movement of the victim to the trunk of a car, which it describes as a “place” where “a human being could be put for almost no innocent purpose” and, again, as an “isolated place.” The lead opinion also refers — as if it mattered — to the assumed facts that the driveway was “an open area from which [the victim] might have run away or been seen by the people inside the house.” All those comments show that the lead opinion is preoccupied by what it believes to be the defendant’s efforts to hide the victim from the view of others. But defendant was not charged with secreting the victim2 and, therefore, the case below and before this court is not about secreting. The court should not overrule precedent interpreting the phrase “takes * * * from one place to another” in ORS 163.225(1)(a) to accommodate its obvious concern with the apparent attempt to secrete the victim that the facts may suggest, but which never was charged.
And make no mistake, the lead opinion is overruling two of this court’s previous cases: In Garcia, for example, the court undertook an extensive analysis of the legislative history of the kidnapping statutes. The court there characterized the purpose of the drafters of the criminal code this way:
“The minutes reveal that the drafters intended to prevent conviction and sentencing for kidnapping when the detention was merely incidental to a rape or robbery.”
288 Or at 417 (emphasis added). The court then went on to state:
“From this history we draw the inference that the Commission, and subsequently the legislature, intended that there be no conviction of the defendant for the separate crime of kidnapping where the detention or asportation of the victim is merely incidental to the accomplishment of another crime * *
*486Id. at 420 (emphasis added). The Garcia court then directly and unambiguously held the following:
“The drafting technique utilized to accomplish the legislative purpose is manifested in the definition of the crime of kidnapping. The Commission reasoned that even though the malefactor’s conduct offended the statutory injunctions [against some other substantive offense], he would be guilty of kidnapping also if in committing [that other offense] he took the victim a ‘substantial distance’ or held the victim ‘a substantial period of time.’ * * * As finally enacted the law does not even require that there actually be a substantial interference with the victim’s personal liberty; it is only necessary that the perpetrator have the ‘intent to interfere substantially’ with the victim’s personal liberty to make the malefactor guilty of kidnapping if he commits an act proscribed by ORS 163.225. We find nothing in legislative history to indicate the legislature intended by its adverb ‘substantially’ anything other than was intended by the Commission in its use of the adjective ‘substantial.’ ”
Id. at 420-21 (emphasis added).
As the foregoing recitation makes clear, the Garcia court did not, as the lead opinion would have it, “mention ‘substantial distance’ as one aspect of proving the required intent to ‘substantially interfere.’ ” 346 Or at 476 n 7. Instead, the court recognized that the Commission (and the legislature) intended to eliminate overcharging in cases where movement of a victim was “merely incidental” to crimes such as the central crime in this case — robbery. In order to carry out that manifest intent, the Garcia court imposed a requirement that, where the defendant was attempting to commit some other substantive offense (in this case, robbery), the evidence show that the defendant moved the victim a “substantial distance.” That requirement was designed to assure that the acts that constituted the alleged kidnapping were not “merely incidental” to another crime. Proof that a victim of another offense was moved “a substantial distance” from place to place thus was not about intent to “substantially interfere” — commission of the other substantive offense (rape, robbery, or the like) proved that. Instead, the “substantial distance” proof was intended to show that *487defendant’s acts were not merely incidental to the other substantive offense but, instead, constituted the separate crime of kidnapping. Garcia thus is flatly contrary to the lead opinion, and the lead opinion’s attempt to avoid Garcia ignores history.
State v. Wolleat, the second case cited by the lead opinion, is further support for my point. There, the defendant assaulted his fiancee and, in the course of doing so, moved her 15 or 20 feet from one room in their home to another. He was convicted of fourth-degree assault and kidnapping. As the case presented itself to this court, the only issue was the sufficiency of the evidence to support the kidnapping conviction. 338 Or at 471-72.
This court, in its analysis, thoroughly examined Garcia and, for good measure, revisited the legislative history of ORS 163.225(1)(a). Wolleat, 338 Or at 474-78. The court then summarized its research this way:
“One proposition emerges clearly from the legislative history. Moving a victim from one room to another while committing another crime does not constitute moving the victim a substantial distance. Put differently, that movement is not sufficient, by itself, to give rise to an intent to interfere substantially with the victim’s liberty to move freely. See Garcia, 288 Or at 421 (explaining that concept of ‘substantial distance’ informs meaning of ‘intent to interfere substantially’). With that background in mind, we turn to the facts of this case.
“The evidence, viewed in the light most favorable to the state, shows that defendant moved the victim from the bedroom to the living room, approximately 15 to 20 feet, while he assaulted her. A reasonable juror could infer from that evidence that defendant intended to move the victim the distance that he did. However, an intent to do only that would be insufficient to establish the mental element necessary to prove kidnapping — a point that the legislative history makes clear. In order to find defendant guilty of kidnapping, a reasonable juror would have to be able to infer that defendant intended either to move the victim a greater distance than he did or to transport her to a place of confinement. As our recitation of the facts makes clear, no reasonable juror could draw that inference from this record.
*488“We recognize, as the court did in Garcia, that in most cases the question whether the defendant intended to interfere substantially with the victim’s liberty will present a question of fact for the jury. Id. In some cases, however, the intended movement will be so minimal that a court can say, as a matter of law, that no reasonable juror could find that the defendant had the statutorily required intent. This is one of those cases, as the examples in the legislative history make clear.”
Wolleat, 338 Or at 478. The court then held that the evidence against defendant was insufficient. Id. at 478-79.
Wolleat, in other words, recognized that moving a victim a “substantial distance” was required in order to show that defendant intended to commit kidnapping, i.e., intended — apart from and above the acts involved in the other substantive offense — separately to interfere substantially with the victim’s liberty. Or, as the Wolleat court might just as readily have said, “The record in this case shows only movement that was merely incidental to the substantive offense.”
Finally, the lead opinion dismisses Murray. 346 Or at 474. But that opinion cited all the foregoing parts of Garcia with approval. Murray, 340 Or at 604-06. And, after doing so, this court specifically agreed with Garcia’s equating of the requirement that movement be “from one place to another” under ORS 163.225(1)(a), when it occurs in the context of a separate substantive offense, with movement of a “substantial distance.” This court said:
“Put differently, defendant did not ‘take’ [the victim in that case] anywhere or, even if he did, the distance that [the victim] moved was not ‘substantial,’ i.e., was not ‘from one place to another.’ See Garcia, 228 Or at 421 (defendant guilty of kidnapping only if, during commission of another substantive offense, he took victim ‘substantial distance’).”
Murray, 340 Or at 606-07. Once again, and as a direct followup to the analysis in Garcia and in Wolleat, the Murray decision stands authoritatively for the precise proposition that the lead opinion now wishes to ignore.
In the long run, however, it may be that the “substantial distance” quarrel that I have with the lead opinion is *489beside the point. The pivotal fact here is that the victim was moved by the acts of her attacker during the course of an assault and attempted robbery. Given that the victim resisted, it is hard to imagine any such crime in which the struggling parties would not move at least 15 feet. The movement clearly and inescapably was “incidental to” those crimes. We thus are not even called on to decide whether a 15-foot movement of a victim ever could be movement “from one place to another,” as that concept appears in ORS 163.225(1)(a). Even if it could be such under some circumstances, that circumstance is not presented here.
I do not mean to suggest that the majority’s sense that defendant’s actions constituted some kind of kidnapping-related crime is entirely misplaced. It may be possible that defendant successfully could have been charged with attempted kidnapping under ORS 163.225(1)(b) on the theory that he attempted to “secretly confine” the victim in the trunk of a car — “a place where [she was] not likely to be found.” But the prosecutor and the grand jury, not we, chose to charge defendant with violating ORS 163.225(1)(a). It is inappropriate for this court to adopt an entirely new reading of ORS 163.225(1)(a) that saves the prosecution from the consequences of its choice, simply because the place to which the victim was moved evokes in some of us a feeling of secret confinement.3
I respectfully dissent.
De Muniz, C. J., and Durham, J., join in this dissenting opinion.“7 The Court of Appeals stated that movement can only be ‘from one place to another’ if the movement is ‘substantial’- — -a statement that the Court of Appeals based on its understanding of Murray. * * * As discussed above, the asportation requirement of ORS 163.225(l)(a) does not even use the word ‘substantial,’ and the drafters considered, but rejected, the use in that section of the term ‘substantial distance.’ This court’s cases, including [State v.] Garcia[, 288 Or 413, 605 P2d 671 (1980)], [State v.] Wolleat[, 338 Or 469, 111 P3d 1131 (2005)], and Murray, mention ‘substantial distance’ as one aspect of proving the required intent to ‘substantially interfere,’ but they do not state — with the exception of one sentence in Murray — that ‘substantial movement’ is the only way to prove that a defendant moved a victim from one place to another.”
The majority quotes the entire statute at 346 Or at 468.
Count 3 of the indictment charged defendant with “unlawfully and knowingly, without consent or legal authority, tak[ing the victim] from one place to another, with the intent to interfere substantially with [the victim’s] personal liberty * *
That is particularly true when, as here, the defendant is being held accountable for a completed kidnapping under an asportation theory when, if he had been properly charged under a secreting theory, he could at most have been found guilty only of attempted kidnapping.