Brimage v. State

MILLER, Judge,

concurring and dissenting.

I agree that the search and seizure conducted by the police at Appellant’s home violated his constitutional rights. However, the plurality further holds that the evidence was sufficient to support Appellant’s capital murder conviction based on kidnapping, under their interpretation of § 20.03 of the Texas Penal Code. Because I cannot agree with the plurality’s construction of the Texas kidnapping statute, I am compelled to dissent.

I.

Based upon a convoluted and strained reading of Penal Code § 20.03, the plurality holds that no significant degree of movement is required to support the offense of kidnapping. They conclude that a kidnapping occurs “when a restraint is accomplished, and there is evidence that the actor intended to prevent the victim’s liberation and that he intended to do so by either secretion or use or threatened use of deadly force.” Plurality Opinion at 475. Such a reading is contrary to the historical development of kidnapping law in Texas and the United States generally. Worse, this interpretation would turn virtually any assault into a kidnapping.

To support a finding of kidnapping or attempted kidnapping, two key elements must be present: restraint and movement. After a careful review of general Texas kidnapping cases, as well as the case law of some of our sister states, it is apparent that two diametri*485cally opposed, prevailing views exist on the movement element. One view is that a slight movement is a sufficient basis to find kidnapping, and the other view is, of course, that kidnapping requires a substantial movement.

A. Texas Statutory Development

Kidnapping is a crime with deep roots in the common law. See 4 William Blackstone, COMMENTARIES 219. In England, kidnapping once required that the victim be removed from the country in order to constitute the crime, and the violation was punished as a misdemeanor. Id. Adult men, generally, could not be kidnapped. Id. Eventually, removal from the country was no longer required, but a substantial movement was. Francis Wharton, Wharton’s CRIMINAL Law § 210 (C.E. Torica ed., 14th ed. 1979 & Supp.1992).

The United States adopted the British definition and gradually altered it until the law required only that the victim be moved across state lines. Id. Over time, however, the distance of movement necessary to satisfy the definition of kidnapping shrunk until most states defined the crime without reference to interstate transport. Id.

According to the former law in Texas, a child 17 or under could be kidnapped if concealed from or taken from his parents, but an adult could only be kidnapped if the motive was to remove that person from the State. Tex.Penal Code Ann. art. 1177 (repealed. 1974). Furthermore, the term “abduction” was reserved only for those instances where one falsely imprisoned a woman with intent to “force her into a marriage or for the purpose of prostitution.” Id. art. 1179.

Our current Penal Code modified the earlier requirements and § 20.03 now defines the act of kidnapping as intentionally or knowingly abducting another person. Tex.Penal Code Ann. § 20.03 (Vernon supp. 1988). Abduction is defined as “[restraining] a person with intent to prevent his liberation by: (A) secreting or holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly force.” Id. § 20.01(2). “Restrain” is in turn defined as “[restricting] a person’s movements without consent, so as to interfere substantially with his liberty, by moving him from one place to another or by confining him.” Id. § 20.01(1).

B. Texas Kidnapping Cases

Texas law does not impose a minimal requirement for restraint other than the fact that the interference with the person’s liberty must be substantial. Earhart v. State, 823 S.W.2d 607, 618 (Tex.Crim.App.1991) (citing Rogers v. State, 687 S.W.2d 337 (Tex.Crim.App.1985)). Neither does it require that the interference be for a minimum length of time. Rogers, 687 S.W.2d at 342 (citing Rodriguez v. State, 646 S.W.2d 524 (Tex.App.—Houston [1st Dist.] 1982, no pet.)). Nevertheless, an examination of past cases reveals that most contain an interference that is more substantial than that found in the present case.1

In Earhart, the appellant was convicted on the basis of circumstantial evidence after a young girl was abducted and murdered. 823 S.W.2d at 611-618. The definition of re*486straint was satisfied because 1) the girl was under 14 years of age and could not have consented to accompanying Earhart, 2) she was discovered in the woods far from home, and 3) was bound and shot in the head. Id. at 618. Therefore, by moving the girl far away from home, her liberty had been substantially interfered with and, since the State was not required to disprove consent in that case, even circumstantial evidence was a proper basis for establishing kidnappmg.

In Gribble v. State, evidence, including the defendant’s own testimony, indicated that the victim was removed from her house and taken to some woods (10 miles away) in an apparent effort to keep the victim from reporting that he had sexually abused her. 808 S.W.2d 65, 68 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1232, 111 S.Ct. 2856, 115 L.Ed.2d 1023 (1991). Once in the woods, the victim began screaming and Gribble removed the victim’s sash and strangled her with it. Id. Thus, the kidnappmg had already occurred prior to the murder. Parenthetically, Gribble also states the obvious: that a dead body cannot be kidnapped. Id. at 72, n. 16. Therefore, the binding and removal of the deceased victim in the case at bar (the coroner’s testimony suggested that she was dead prior to her placement in the car trunk) is irrelevant to the issue of kidnapping.

C. Other States’ Kidnapping Cases

1. Cases Requiring Slight Movement

Several states have taken the approach that only slight movement is necessary to support a kidnappmg charge.2 Those states “frequently reason[] that it is the fact of forcible removal, and not the distance of the removal which constitutes the crime of kidnapping.” Robert A. Shapiro, Seizure or Detention for Purpose of Committing Rape, Robbery, or Similar Offense as Constituting Separate Crime of Kidnapping, 43 A.L.R.3d 699, 702 (1972).

During a robbery, in Turner v. Housewright, there was no merger with the crime of kidnapping where the defendant brought the victims into a house at gunpoint and then moved them from room to room for four hours. 599 F.Supp. 1358 (D.Nev.1984), aff'd, 779 F.2d 29 (9th Cir.1985).

Arizona long ago held that kidnappmg had occurred where the defendant moved the victim through a house and outside to a cabana before committing a rape. State (Arizona) v. Jacobs, 93 Ariz. 336, 380 P.2d 998 (1963), cert. denied, 375 U.S. 46, 84 S.Ct. 158, 11 L.Ed.2d 108 (1963). The Arizona Supreme Court reasoned that, although the crime scene was small, a kidnapping had occurred because it “preceded and was complete before the rape.” Therefore, the “component parts of the two crimes [were] distinct and separate.” Id. at 1003. Later Arizona cases have followed this view. See e.g., State (Arizona) v. Williams, 111 Ariz. 222, 526 P.2d 1244 ([Panel op.] 1974) (victim was forced into bedroom at gunpoint and then raped); *487State (Arizona) v. Burchett, 107 Ariz. 185, 484 P.2d 181 (1971) (child lured to car and then car was pulled into alley).

The Delaware Supreme Court has ruled that, where a -victim was forced into her car under threat of death, the restraint used was a substantial interference with her liberty (that is, in excess of the usual restraint incident to the underlying crime of unlawful sexual conduct). Coleman v. State (Delaware), 562 A.2d 1171 (Del.1989), cert. denied, 493 U.S. 1027, 110 S.Ct. 736, 107 L.Ed.2d 754 (1990).

The Virginia Supreme Court has similarly confronted and resolved this issue. In Hoke v. Commonwealth (Virginia), the court upheld convictions for robbery, abduction, rape, and capital murder because the abduction had been separate from the restraint necessary to perpetuate the rape and robbery where the victim was tied and gagged for a period of several hours. 237 Va. 303, 377 S.E.2d 595 (1989), cert. denied, 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 709 (1989).

Finally, the Kansas Supreme Court has undertaken an in-depth review of the issue and concluded that, although its kidnapping statute requires no particular distance of removal in order to constitute the crime, some limitations are implicated. State (Kansas) v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976). The Buggs case, a combination robbery and rape, delineated the minimum threshold of the crime in this manner:

[I]f a taking or confinement is alleged to have been done to facilitate the commission or another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.
For example: A standstill robbery on the street is not a kidnapping; the forced removal of the victim to a dark alley for robbery is. The removal of a rape victim from room to room within a dwelling solely for the convenience and comfort of the rapist is not kidnapping; the removal from a public place to a place of seclusion is. The forced direction of a store clerk to cross the store and open a cash register is not kidnapping; locking him in a cooler to facilitate escape is. The list is not meant to be exhaustive, and may be subject to some qualification when actual cases arise; it nevertheless is illustrative of our holding.

Id., 547 P.2d at 731 (emphasis added).

While the Kansas statute differs from our own,3 the Buggs case summarizes a proposition basic to a finding of kidnapping regardless of the amount of asportation necessary to implicate the crime: kidnapping cannot occur unless the act giving rise to it has a separate meaning from any other crime.

2. Cases Requiring Substantial Movement

In contrast to the eases cited above, many states adhere to the more traditional view that movement must be substantial to qualify as kidnapping.4 These cases generally rea*488son “that movements merely incidental to the commission of the crime and which do not substantially increase the risk of harm over and above that necessarily present in the crime do not constitute the separate crime of kidnapping.” Shapiro, 43 A.L.R.3d at 702.

In Robinson v. U.S., the victim was seized (without a weapon) and dragged 63 paces before being thrown to the ground. 388 A.2d 1210, 1212 (D.C.Ct.App.1978). A kidnapping, however, did not occur because the asportation was incidental to and indistinguishable from the attempted rape. Id.

The California Supreme Court found kidnapping in a case in which a robbery victim was moved 10 to 13 blocks while being held under a gun-like cigarette lighter. In re Earley, 14 Cal.3d 122, 120 Cal.Rptr. 881, 883-84, 534 P.2d 721, 723-724 (1975). The court discussed a number of cases, some holding that brief movements or movements within a single location were not kidnappings, but were part of the intended offense, and went on to hold that the distance the victim was moved did substantially increase the risk of harm to the victim. Id., 120 Cal.Rptr. at 886, 534 P.2d at 726. Because the movement was not “ ‘merely incidental to the commission of the robbery!,]’ ” kidnapping was present. Id. at 886-87, 534 P.2d at 726-727 (citations omitted).

Consistent with the discussion within Ear-ley, a California court of appeals, in Bryant v. Craven, previously held there was no kidnapping where, during a robbery, persons were moved around a store. 19 Cal.App.3d 933, 97 Cal.Rptr. 40 (2nd Dist.1971). However, kidnapping was ultimately found in that case because some persons were transported two to three miles in a car. Id.

In Illinois, an aggravated kidnapping conviction was reversed where the objective, motive, and purpose (rape) of the defendant remained unchanged until after the rapes were accomplished. People (Illinois) v. Ford, 44 Ill.App.3d 94, 2 Ill.Dec. 645, 649, 357 N.E.2d 865, 869 (4th Dist.1976). Additionally, the penalty for the offense of aggravated kidnapping was less severe than that for rape. Id.

In State (Ohio) v. Malone, an appellate court reversed a case in which rape and kidnapping convictions were returned. 15 Ohio App.3d 123, 472 N.E.2d 1122 (1984). The victim was forcefuUy moved a short distance, immediately robbed, and then raped four times. Id., 472 N.E.2d at 1123. The court followed precedent from the Ohio Supreme Court and reasoned that, because kidnapping did not substantially increase the duration of restraint or the risk of harm to the victim that was involved in the underly-*489mg offense of rape, no conviction for that crime could stand. Id.

D. Texas Kidnapping Statute

Without question, the difficulty with the Texas kidnapping statute lies in its over-breadth; its definition can be read to enlarge virtually any nonconsensual “restraint” into a kidnapping. Such an interpretation renders the knowingly or intentionally provisions of abduction meaningless because it essentially converts this offense into a strict liability crime. As mentioned, many crimes, especially rape, consist of some form of non-eonsensual restraint. Therefore, the act of restraining is an inherent part of many attempted or completed assaultive offenses that do not, in every case, implicate kidnapping. More must be required in order to constitute this crime, and those factors are movement or confinement (either one) combined with the intent to abduct. Kidnapping is a crime requiring specific intent, and it should be charged accordingly; that is, when confronted with a crime scenario indicating multiple contemporaneous assaultive offenses, the crime of kidnapping generally will not be implicated unless 1) the duration of the victim’s restraint is increased beyond that attendant to the associated offense or 2) the defendant’s acts greatly increase the risk of harm to the victim beyond that presented by any other associated offense.

In the case at bar, the victim was, technically, moved in the moments prior to the murder. This being so, the record also reflects the conclusion of the medical examiner regarding three possible causes of death, the most probable of which would have resulted in rapid unconsciousness and death, but any of which would have produced death prior to any meaningful movement of the victim. As such, the duration of the movement did not exceed the amount of time necessary for the commission of the murder or sexual assault of the victim. Movement as limited as this is not an interference with a person’s liberty substantial enough to serve as a basis for a finding of the restraint element under section 20.01 of the Penal Code. See Tex.Penal Code Ann. § 20.01 (Vernon Supp. 1988).

Furthermore, while it appears that the victim was technically restrained or confined during the episode, the intention of the confinement or restraint must be examined. In this case, Appellant’s obvious and stated intention was to sexually assault the victim, not to kidnap her.

I wanted her sexually real bad and that is why I lured her to my house.... I wasn’t sure she was dead, so I started to tie her up so she would not struggle anymore. I got some nylons and pulled her feet behind her back. I tied her hands to her feet where she was bent out of shape_ After I was certain she was dead; tied up, I took off her shorts, so I could admire her body.... I know that by calling Mary Beth and luring her to the house was wrong and I really wanted to have her sexually and when she did not do so I killed her.

(Tr.Vol. 13, pp. 155-157).

Furthermore, the medical examiner testified that, although he found no medical evidence of sexual assault, “the sexual nature of the crime [was] obvious because of the positioning of the body and the way the body [was] tied up with the legs spread and [the] feet tied back underneath the body with the body arched to expose the genital area.” (Tr. Vol. 13, p. 213). Clearly the intent of the restraint or movement, if any, in this case was sexual.

After reviewing all the relevant parts of the record in the case at hand, it is apparent that the prosecution chose what was, in their opinion, the easiest possible path to achieve the greatest possible offense suggested by the facts. As mentioned previously, the indictment originally alleged murder in the course of committing or attempting to commit aggravated sexual assault, as well as committing or attempting to commit kidnapping. The sexual assault portion of the indictment was lined through with the trial judge’s permission. In a bench discussion in which the defense initially objected to testimony regarding the sexual nature of the offense, the prosecution candidly revealed that:

The reason the pleadings were struck was not because we didn’t believe we could *490prove [capital murder in the course of sexual assault] beyond a reasonable doubt but because we didn’t need to prove it up beyond a reasonable doubt to get a capital murder conviction in this case. All these offenses are or’s [sic], all these attempts are or’s [sic], and it was simply our — it was my decision, or the decision I made rather than have the jury confused immediately by the issues that were not necessary to the proof in this case to get a capital murder conviction, and because under the state of the evidence, the laws in this State, res gestae crimes are still admissible and always have been admissible before juries. And in this particular case, the confession, he lured her to the house to engage in sexual conduct, I think the relevancy of the fact of whether or not sexual conduct occurred goes to corroborate the confession, and goes to show the motive in this case. Now that’s why I offered it.

Confident of a capital murder conviction, the State made the choice to abandon the sexual assault portion of the indictment and simply proceed on the less rigorous proof required under the kidnapping charge. However, given the absence of any real movement of the victim prior to her death, the “easier” elevating crime to support a capital murder charge was more likely committing or attempting to commit sexual assault.

By this Court announcing that facts such as these amount to the crime of kidnapping, the jurisprudence of this State will suffer the ills of strained reasoning. To allow a conviction under such a very narrow interpretation of either the movement element or the restraint element of the term restraint, alters the traditional concept of the crime and criminalizes behavior not usually considered kidnapping. As the term has always been understood, at least in its plain usage, kidnapping has required some intentional confinement, restraint or movement of the victim that is substantial (i.e. separate and distinguishable from the confinement, restraint or movement attendant to another offense). Movement that is merely incidental to the commission of a crime, such as murder, cannot further support a conviction for kidnapping. Indeed, our own statute requires a substantial interference with the victim’s liberty,5 yet the plurality’s construction ignores that requirement and announces that the very slightest movement of a person, even in the midst of a different crime, constitutes kidnapping. Such a result will invariably lead, as here, to unfair extrapolations regarding a defendant’s mens rea to commit the crime of kidnapping and will certainly produce absurd results.

II.

The Texas kidnapping statute, when linked with a charge of capital murder under facts such as these, renders infirm section 19.03(a)(2) of our Penal Code for federal constitutional purposes. The statute, utilized here as the supporting felony for capital murder, does not numerically limit the class of murderers subject to the death penalty; many criminals could, by moving a victim the slightest distance, be subjected to capital punishment.6 See generally Gregg v. Georgia, 428 U.S. 153, 196-202, 96 S.Ct. 2909, 2936-2938, 49 L.Ed.2d 859 (1976). Upholding this conviction runs the serious risk of allowing section 20.03 of the Penal Code to become a refuge for the capricious charging of capital murder in situations that otherwise would not support such a charge. An outcome of that nature places the Texas scheme, at least as it applies to similar situations, in jeopardy. See Gregg, 428 U.S. at 196-207, 96 S.Ct. at 2936-2941; see generally Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976).

In Gregg, petitioner attacked Georgia’s aggravating feature that would authorize the death penalty “if the murder was ‘outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, *491or an aggravated battery to the victim,’ contending that it is so broad that capital punishment could be imposed in any murder case.” Gregg, 428 U.S. at 201, 96 S.Ct. at 2938. The Supreme Court declined to answer this allegation while acknowledging that it is “arguable that any murder involves depravity of mind or an aggravated battery[,]” but indicated that the “language need not be construed in this way, and there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction.” Id. (emphasis added.) This, the High Court assumed, was shown by the fact that “[i]n only one case has [the Georgia Supreme Court] upheld a jury’s decision to sentence a defendant to death when the only statutory aggravating circumstance found was [that described above], and that was a horrifying torture-murder.” Id. (citation omitted.) Although Gregg addressed whether the Georgia statute arbitrarily resulted in an imposition of the death penalty by a jury, there is no reason to think the same analysis would not apply to our system, and the Supreme Court seemed to imply that the proper ease would attract its review of such an issue. Moreover, Gregg reviewed the Georgia jury procedure in sentencing a defendant, not the prosecution’s selection power over how the defendant is to be charged. Without question, the acts of the prosecution are more readily subject to a review for a claim of capriciousness than are those of a jury.

III.

The plurality concedes that, had they been construing the common law offense of kidnapping, they might be willing to agree with the foregoing analysis. Plurality Opinion at 477, n. 10. Because the offense is presently codified in statutory form, they feel justified in ignoring the common law background from which the legislature drafted the statute. Contrary to the plurality’s view,7 a court may consider the common law when construing a statute. Tex.Govt.Code Ann. § 311.023(4) (Vernon 1994). The need to look to the common law is obvious in a situation, such as this one, where the statute is ambiguous and results in an unconstitutional interpretation.8 Furthermore, the provisions of the Penal Code are to be “construed according to the fair import of their terms, to promote justice and effect the objectives of the code.” TexPenal Code § 1.05(a). The plurality’s construction fails to do this. Therefore, I implore the legislature to amend § 20.03 to clearly state that the offense of kidnapping requires substantial movement, confinement or restraint that is not merely incidental to the actions required to commit another offense.9

IV.

Mindful of the foregoing discussion and adherent to the “plain meaning” teachings of Boykin,10 I do not find that kidnapping is implicated by these facts. Thus, no basis existed for sending a charge to the jury that implicated the crime of kidnapping as the underlying felony for capital murder. Appellant, realizing as much, properly moved at trial for a directed verdict in his favor, but was denied his motion. The evidence, viewed in a light most favorable to the prosecution, is insufficient to support a conviction of capital murder based on kidnapping. See Nelson v. State, 848 S.W.2d 126, 131 (Tex.Crim.App.1992). Therefore, Appellant should be ac*492quitted of the charge of capital murder. Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Stephens v. State, 806 S.W.2d 812, 816 (Tex.Crim.App.1990).

Under the facts and procedural history of this case, I would reverse Appellant’s conviction for capital murder and acquit the defendant.

BAIRD, J., joins this opinion.

. Both Earhart and Gribble v. State, 808 S.W.2d 65 (Tex.Crim.App.1990) are representatn e of what Texas usually views as kidnapping; that is, some movement or restraint must occur. Other similar cases include Boyle v. State, 820 S.W.2d 122 (Tex.Crim.App.1989), cert. denied, 503 U.S. 921, 112 S.Ct. 1297, 117 L.Ed.2d 520 (1992) (girl solicited a ride in a semi-tractor and was later found in a culvert outside town dead, bound and gagged); Webb v. State, 760 S.W.2d 263 (Tex.Crim.App.1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3202, 105 L.Ed.2d 709 (1989) (victims were abducted in a robbery attempt and forced to drive around town until they were shot and killed); Lincecum v. State, 736 S.W.2d 673, 679-680 (Tex.Crim.App.1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2835, 100 L.Ed.2d 936 (1988) (mother and son were abducted in their car from church parking lot, were heard screaming for assistance, and never returned); Vanderbilt v. State, 629 S.W.2d 709 (Tex.Crim.App.1981) (opinion after remand), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1982) (victim was abducted from her car and killed); Garza Garza v. State, 788 S.W.2d 651 (Tex.App.—Corpus Christi 1990, no pet.) (appellant killed one victim, placed gun to head of sexual assault victim and told her she would be killed, then drove her to Florida); Guerra v. State, 690 S.W.2d 901 (Tex.App.—San Antonio 1985, no pet.) (testimony indicated that, prior to murder, victim was forced from bar to car and that deadly force was used to restrain her).

. See, e.g., Harris v. State (Arkansas), 299 Ark. 433, 774 S.W.2d 121, 124 (1989) (evidence sufficient for kidnapping where, after victim’s escape, defendant twice chased victim and dragged her from one building to another); People (Colorado) v. Powell, 716 P.2d 1096 (Colo.1986) (moving victim from one car to another prior to rape increased the risk of harm to the victim and constituted kidnapping); State (Connecticut) v. Jones, 215 Conn. 173, 575 A.2d 216 (1990) (grabbing jogger from center of road and dragging her completely off road provided sufficient movement for kidnapping); Carron v. State (Florida), 414 So.2d 288 (Fla.Dist.Ct.App. [2nd Dist.] 1982), approved of in 427 So.2d 192, 193 (Fla.1983) (moving victims through home at gunpoint, then tying victims and placing them in a bathtub substantially decreased defendants’ chance of detection and kidnapping was not, therefore, incidental to crime of robbery); Davis v. State (Georgia), 180 Ga.App. 190, 348 S.E.2d 730, 732 (1986) (evidence of kidnappmg sufficient where victim was forcibly carried to area behind her house prior to rape); State (Kansas) v. Bourne, 233 Kan. 166, 660 P.2d 565, 567 (1983) (moving girls into bedroom where others would be prevented from aiding them constituted kidnappmg as separate from crime of rape); State (North Carolina) v. Davidson, 77 N.C.App. 540, 335 S.E.2d 518, 520 (1985), rev. denied, 315 N.C. 393, 338 S.E.2d 882 (1986) (moving victims 35 feet at gunpoint prior to binding them constituted crimes of kidnapping and robbery because moving the victims was unnecessary to completion of the robbery); Coram v. Commonwealth (Virginia), 3 Va.App. 623, 352 S.E.2d 532, 534 (1987) (moving victim 20 feet into bushes to facilitate rape attempt constituted kidnapping because the movement increased the possibility of harm to the victim by lessening the chance that the crime would be detected).

. Cf. the Kansas law operative at the time of the Buggs case with our own Penal Code §§ 20.01 et. seq., ante:

Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
(a) For ransom, or as a shield or hostage; or
(b) To facilitate flight or the commission of any crime; or
(c) To inflict bodily injury or to terrorize the victim or another; or
(d) To interfere with the performance of any governmental or political function.

Kan.Stat.Ann. § 21-3420(1970).

. See, e.g., Alam v. State (Alaska), 776 P.2d 345, 349-50 (Alaska Ct.App.1989), rev'd on other grounds, 793 P.2d 1081 (Alaska Ct.App.1990) (kidnapping not present where restraint incidental to defendant’s intent to commit another crime); White v. State (Arkansas), 301 Ark. 74, 781 S.W.2d 478, 481 (1989) (movement of victim insufficient to sustain kidnapping conviction in addition to rape); People (California) v. Martinez, 150 Cal.App.3d 579, 597, 198 Cal.Rptr. 565, 577-78 ([2d Dist.] 1984) (movement and detention of victims within their residence did not constitute kidnapping where incidental to burglary, robbery and rape); State (Connecticut) v. Amarillo, 198 Conn. 285, 503 A.2d 146, 157-58 (1986) (forcing *488victim at knifepoint to drive across state lines prior to sexual assault constituted kidnapping); Brinson v. State (Florida), 483 So.2d 13, 15-16 (Fla.Dist.Ct.App. [1st Dist.] 1985), rev. denied, 492 So.2d 1335 (Fla.1986) (where victims moved between rooms of house and bound, movement considered slight and inconsequential and kidnapping not implicated as separate from crime of aimed robbery); People (Illinois) v. Young, 115 Ill.App.3d 455, 71 Ill.Dec. 259, 270-72, 450 N.E.2d 947, 958-60 ([2nd Dist.] 1983), later proceeding 136 Ill.App.3d 107, 90 Ill.Dec. 725, 482 N.E.2d 1008 ([2nd Dist.] 1985) (seizing victim and throwing her against wall before raping her did not implicate crime of kidnapping as apart from crime of rape); Thomas v. State (Indiana), 509 N.E.2d 833, 834-35 (Ind.1987) (kidnapping present where victim was forced from car into abandoned building prior to rape); State (Maine) v. Bunker, 436 A.2d 413, 415-17 (Me.1981) (kidnapping distinct from rape where defendant picked up victim and drove 13 miles to a secluded area, had intercourse, then returned her two hours later to original location); People (Michigan) v. Gwinn, 111 Mich.App. 223, 314 N.W.2d 562, 569-71 (1982) (kidnapping implicated where victim was forced into car at gunpoint, driven to another location and raped, then returned to area near her home); State (Missouri) v. Stewart, 615 S.W.2d 600, 602-04 (Mo.Ct.App.1981) (evidence sufficient to support kidnapping conviction where risk of harm to victim increased after defendant, at knifepoint, drove victim to several locations for purpose of rape and detained victim for one hour); People (New York) v. D’Angelo, 166 A.D.2d 662, 561 N.Y.S.2d 83, 84 ([2nd Dept.] 1990), appeal denied, 77 N.Y.2d 876, 568 N.Y.S.2d 919, 571 N.E.2d 89 (1991) (kidnapping evidence sufficient where rape victim driven through several New York boroughs and then into New Jersey prior to rape); People (New York) v. Scattareggia, 152 A.D.2d 679, 543 N.Y.S.2d 742, 744 ([2nd Dept.] 1989) (kidnapping not indicated where evidence of crime offered was based on restraint incidental to and inseparable from the commission of rape and sodomy); State (South Dakota) v. Reed, 313 N.W.2d 788, 789 (S.D.1981) (where victim was forced to drive through city to an abandoned farmhouse, kidnapping, in addition to rape, occurred).

. See Tex.Penal Code § 20.01(1) (" ‘Restrain’ means to restrict a person’s movements without consent, so as to interfere substantially with his liberty, by moving him from one place to another or by confining him.”).

. In fact, the only murders that would not be subject to capital punishment under this interpretation would be those in which the defendant walked up and shot the victim as he was found. If the defendant so much as told the victim to stand, he could be convicted of capital murder.

. See Penal Code § 1.05.

. See discussion in Part II, supra.

. The drafters of the Model Penal Code were aware of the problems associated with the Majority’s interpretation and guarded against them by requiring a substantial movement or confinement.

A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following purposes:
a) to hold for ransom or reward, or as a shield or hostage; or
b) to facilitate commission of any felony or flight thereafter; or
c) to inflict bodily injury on or to terrorize the victim or another; or
d) to interfere with the performance of any governmental or political function.

Model Penal Code § 212.1 (1974) (emphasis added).

. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991).