dissenting.
The majority reverses defendant’s conviction for second-degree kidnapping, holding that no reasonable juror could find that defendant took the victim “from one place to another.” In the majority’s opinion, the state could meet that requirement only if it proved that defendant moved the victim a “substantial distance.” Because the majority equates two concepts that the drafters of the kidnapping statutes specifically distinguished, I respectfully dissent.
The victim was getting into her car after shopping. As she did so, defendant pushed her out of the driver’s seat and over onto the passenger seat. Defendant got into the driver’s seat of the car, but the victim escaped before defendant could drive away with her. The majority holds that those facts are not sufficient, as a matter of law, to prove second-degree kidnapping because no reasonable juror could find that defendant took the victim “from one place to another.”1 The majority’s holding turns on its interpretation *608of the quoted phrase. Relying on part of the legislative history set out in State v. Garcia, 288 Or 413, 416, 605 P2d 671 (1980), the majority reasons that the legislature did not want to punish, as second-degree kidnapping, movements that were incidental to the commission of some other crime, and it concludes that a movement will be incidental unless the defendant moves the victim a “substantial distance.” 340 Or at 606-07.
The majoritys conclusion that moving a victim “from one place to another” means moving the victim “a substantial distance” is directly contrary to the legislative history of the kidnapping statutes. There were four drafts of the kidnapping statutes.2 The first draft provided that a person would commit the crime of second-degree kidnapping if, among other things, the person moved the victim “from one place to another.” See Criminal Law Revision Commission, Subcommittee No 2, Preliminary Draft No 1, Art 12, § 1(1) (Oct 1968) (defining “restrain”).3 That draft also provided that second-degree kidnapping would become first-degree kidnapping if, among other things, the person moved the victim “a substantial distance from the vicinity where he is found.” Id. at § 3(1).
As those two provisions demonstrate, the drafters of the kidnapping statutes understood that a person could move a victim “from one place to another” without moving the victim “a substantial distance.” Proof of the latter act elevated *609the crime of second-degree kidnapping to first-degree kidnapping. Far from equating those two phrases, as the majority does, the drafters understood that each phrase described a separate act and that a person need not move the victim a “substantial distance” in order to move the victim “from one place to another.”
The second draft of the kidnapping statutes continued that distinction. As before, the statutes required proof that a person move the victim “from one place to another” to establish second-degree kidnapping. Criminal Law Revision Commission, Subcommittee No 2, Preliminary Draft No 2, Art 12, § 1(1) (Dec 1968) (defining “restrain”). The second draft contained three alternate sets of elements that would elevate second-degree kidnapping to first-degree kidnapping. The second alternate set would have required proof that the defendant “h[e]l[d] the victim for a substantial period of time or remove [d] the victim a substantial distance from the place where the victim was first restrained * * Id. at § 3 (alternate 2). The drafters rejected that alternate set of elements because the “elements of substantial period of time and substantial distance in Alternate 2 * * * created unnecessary problems.” Criminal Law Revision Commission, Subcommittee No 2, Minutes, Dec 12,1968, 5.
Ultimately, the drafters chose to use a different set of elements — the purposes for which the defendant kidnapped the victim — to distinguish first-degree kidnapping from second-degree kidnapping. Id. at 5-6; see ORS 163.235(1) (defining purposes that distinguish first-degree from second-degree kidnapping). They also deleted any reference to “a substantial period of time” and “a substantial distance” from the text of the kidnapping statutes. The deletion of those phrases, however, does not suggest some unarticulated intent to equate, as the majority does, moving the victim “from one place to another” with moving the victim “a substantial distance.” Rather, the drafters carefully distinguished the act of moving the victim “from one place to another” from the act of moving the victim “a substantial distance.”
The majority’s interpretation of the phrase “from one place to another” rests on a second, equally suspect proposition. As the majority recognizes, the legislature did not *610intend to punish defendants for “the separate crime of kidnapping where the detention or asportation of the victim is merely incidental to the accomplishment of another crime.” Garcia, 288 Or at 420. The legislature, however, did not change the ordinary understanding of “asportation” to accomplish that goal.4 Rather, the legislature relied on the requirement that the defendant “ ‘intenfd] to interfere substantially with the victim’s personal liberty’ to distinguish kidnapping from conduct incidental to another crime. Id. at 421 (emphasis in original). The court’s decision in Garcia makes that proposition clear.
The crime of second-degree kidnapping has two elements. It requires a physical act — taking a person “from one place to another.” It also requires proof of a mental state — the “intent to interfere substantially with another’s personal liberty.” In Garcia, the court explained that the legislature wanted to avoid separate convictions for kidnapping “where the detention or asportation of the victim is merely incidental to the accomplishment of another crime.” 288 Or at 420. Conversely, the “legislature perceived no reason not to prosecute and punish a malefactor for the separate crime of kidnapping where the detention or asportation is not merely incidental to the commission of the underlying crime.” Id. (emphases in original).
The court then explained that the legislature relied on the mental state, not the physical act, to distinguish those two situations. The court reasoned:
“The drafting technique utilized to accomplish the legislative purpose is manifested in the definition of the crime of kidnapping. The [Oregon Criminal Law Revision] Commission reasoned that even though the malefactor’s conduct offended the statutory injunctions against rape or robbery, he would be guilty of kidnapping also if in committing rape or robbery 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 *611interfere 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.’
“The end result is that the legislature has left it to the process of adjudication to determine whether there was an intent to interfere substantially.”
Id. at 420-21 (emphasis added; citation and footnote omitted).
As the emphasized part of the quotation from Garcia makes clear,5 the legislature used the phrase “intent to interfere substantially with [the victim’s] personal liberty” to accomplish its goal of distinguishing kidnapping from incidental conduct that might accompany some other crime. See State v. Wolleat, 338 Or 469, 477, 111 P3d 1131 (2005) (quoting legislative history to that effect).6 Nothing in Garcia or the legislative history suggests that the legislature also intended to use the act of moving the victim “from one place to another” to accomplish that purpose. The majority errs in relying on that legislative purpose to determine what the phrase “from one place to another” means. Reading that purpose into both the mental element and the physical act amounts to “double counting” and undercuts rather than advances the legislative goal.
Interpreting the phrase “from one place to another” in light of the legislative history and this court’s construction of the kidnapping statutes in Garcia, I would hold that the state introduced sufficient evidence to submit the crime of *612second-degree kidnapping to the jury. Regarding the mental element, a reasonable juror could find that defendant intended to interfere substantially with the victim’s personal liberty; that is, a reasonable juror could find that, but for the victim’s escape, defendant intended to drive off with her. A reasonable juror also could find that defendant committed the act of taking the victim “from one place to another.” To be sure, defendant did not move the victim a “substantial distance” when he moved her from one seat to another, but the legislative history makes clear that a defendant need not move the victim a substantial distance in order to move her from one place to another. Because a reasonable juror could find that the state had proved the two elements necessary to establish second-degree kidnapping, I respectfully dissent.
Riggs, J., joins in this dissent.ORS 163.225 provides, in part:
“(1) A person commits the crime of kidnapping in the second degree if, with intent to interfere substantially with another’s personal liberty, and without consent or legal authority, the person:
“(a) Takes the person from one place to another!.]”
The 1967 Legislative Assembly created the Criminal Law Revision Commission to revise the state’s criminal laws. State v. Garcia, 288 Or 413, 416, 605 P2d 671 (1980). The Commission divided responsibility for drafting the revised criminal code among three subcommittees, and this court has looked to the subcommittee and the Commission’s drafts, the minutes of their meetings, and their comments on the drafts to interpret the meaning of the kidnapping statutes. See id. (looking to drafters’ intent to determine legislative intent).
The first draft provided that a person committed the crime of second-degree unlawful imprisonment if he “restrainfed] another person.” Criminal Law Revision Commission, Subcommittee No 2, Preliminary Draft No 1, Art 12, § 4 (Oct 1968). “Restrain” was defined as interfering with another’s liberty by “moving him from one place to another.” Id. at § 1(1). Second-degree kidnapping was defined as “abductfing] another person.” Id. at § 2(1). “Abduct” was defined as “restrain[ing] a person with intent to prevent his liberation by [one of two means].” Id. at § 1(2). Proof that a defendant moved a person “from one place to another” was thus necessary to prove both second-degree kidnapping and the lesser crime of second-degree unlawful interference — a fact that, by itself, cautions against reading the phrase as restrictively as the majority does.
That much is apparent from Garcia’s recognition that incidental movement still would constitute asportation.
In setting out Garcia’s discussion of the legislative history, the majority does not quote the part of the discussion beginning with the sentences emphasized above — a part of Garcia’s discussion of the legislative history that is, I submit, crucial to understanding both that decision and the legislature’s intent in enacting the second-degree kidnapping statute.
Similarly, the court held in Garcia that the mental element — the intent to interfere substantially with the victim’s personal liberty — incorporates the concepts of a “substantial distance” and a “substantial period of time.” See 288 Or at 421 (explaining that those concepts inform the meaning of the intent to “substantially interfere”); State v. Wolleat, 338 Or 469, 478, 111 P3d 1131 (2005) (same). It did not hold that the element of a physical act incorporates those concepts, as the majority now concludes.