dissenting.
The vice in the instruction is, that in effect, it told the jury that, if it found defendant guilty of rape in the first degree, it was also to find defendant guilty of kidnapping in the first degree, if he took the victim from one place to another with the intent to interfere substantially with her liberty. Defendant may have taken the victim from one place to another to cause physical injury or for some other reason. Whatever the reason, defendant’s purpose was for the jury to decide.
The facts in this case illustrate the problem with instructing the jury that an element of kidnapping in the first degree is fulfilled by proving an element of rape in the first degree. Defendant told the arresting officer that his sexual relations with the victim were consensual. He denied that he had kidnapped her. According to the victim, the kidnapping and rape occurred after defendant asked her to drive him home. Enroute, defendant told her to pull over. She stated that he then grabbed her, choked and hit her and demanded her jewelry. He then took her car keys, moved into the driver’s seat and parked in a parking lot, where he smoked cocaine and later raped her. Afterward, he returned her car keys and allowed her to drive. Whether defendant took her to the parking lot for the purpose of causing physical injury was an issue of fact.
State v. Rainey, 298 Or 459, 465-66, 693 P2d 635 (1985), teaches us that a trial court may not direct the jury to find a fact that is an element of a charged crime even in the *715absence of rebutting evidence. See also OEC 309(1). The trial court’s instruction violated that principle. For this reason, I dissent.