POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.
Is evidence that an adult male made repeated offers to take a ten-year old girl on outings with him and at one time offered her the keys to his apartment legally sufficient to support a conviction for second degree kidnapping, where the man had only a passing acquaintance with the girl, his offers were unsolicited by the girl or her mother, and where the girl refused all the man’s requests to meet with her or to accept the keys to his apartment?
The Court of Appeals was confronted with this question recently in People v. Denson. As discussed previously, a 5-1 majority of the Court rejected Denson’s argument that the trial court erred in admitting evidence of his 1978 conviction for sexual abuse of his stepdaughter. But that was not all there was to this appeal.
Denson’s other argument raised the sufficiency of evidence issue mentioned above. The issue merited consideration because at no time did the defendant use any physical force against the girl; nor did she ever begin to accompany the defendant on any outing that he proposed to her. All of the defendant’s alleged efforts to attempt to kidnap the girl consisted only of offers to take her on outings or to provide her with the keys to his apartment – all of which the girl refused.
The applicable statutes relating to kidnapping and Court of Appeals precedents on attempt required the prosecutor to prove beyond a reasonable doubt that the defendant “must have engaged in conduct that came dangerously near commission of the completed crime,” which completion here would involve abducting the girl and holding her in a place where she would “not likely be found.” After all evidence was presented in a nonjury trial, the trial court found that the prosecutor met this burden.
On appeal to the Court of Appeals, Denson argued that the trial evidence was legally insufficient (1) to show his intent to abduct the girl and (2) to show evidence of an attempt to commit the actus reus of abduction.
In a decision issued on October 27, 2015, a 5-1 majority of the Court of Appeals, applying the standard of review for challenges to the legal sufficiency of evidence, found that, viewing the evidence in the light most favorable to the prosecution, the trial judge as factfinder could reasonably conclude that all elements of attempted kidnapping were proven beyond a reasonable doubt.
With respect to intent, the Court found the circumstantial evidence at trial, which included testimony by the girl’s mother and admissible evidence of defendant’s prior conviction, sufficient to withstand the sufficiency of evidence challenge.
With respect to the actus reus attempt element, Denson argued that because the trial evidence showed that the girl never acquiesced to any of his offers, the evidence was legally insufficient to show that he came “dangerously near” to abducting her. The Court disagreed, stating that its case law focuses primarily on evidence of a defendant’s conduct, which in this case included defendant’s 30 to 40 offers to meet alone with the girl. The Court added that if it were to accept defendant’s argument, a kidnapping defendant “could never be guilty of attempt because the crime charged could not be completed without the acquiescence of the victim.” The Court held that “under the circumstances of this case, a rational factfinder could conclude that defendant had moved beyond mere preparation to the point that his conduct was potentially and immediately dangerous.”
In his dissent, Judge Eugene Pigott agreed with defendant’s argument that because the girl rejected defendant’s offer to accept the keys to his apartment, the evidence at trial was legally insufficient to support the attempted kidnapping conviction. Judge Pigott stated that although “defendant clearly engaged in alarming behavior with the child…his actions, even viewing them in a light most favorable to the People, did not come ‘dangerously close’ to attempted kidnapping.” In Judge Pigott’s view, appropriate recourse was for psychological treatment for the defendant, rather than incarceration.