Recently the SJC ruled that the evidence was insufficient to support a conviction for attempted kidnapping in COMMONWEALTH vs. MERALDO RIVERA, JR 460 Mass. 139 (2011). The case is a bit disturbing because upon being questioned about his intentions (post miranda) he attempted to explain that in telling an 11 year old to get into his car (whom he had no connection to or ever met) that he was simply “going to go home and listen to music” with the child. (Because that’s what people do when they get bored)
I will say that if an officer encounters this type of situation that G. L. c. 272, § 2 should also be considered. The fact that the defendant only “told the child to get in his car” (similiar facts to another cited case Comm v. Banfill 413 Mass. 1002 (1992) ) ALONE without any other overt act did not amount to kidnapping.
The court in reviewing the case stated “A Boston Municipal Court judge erred in denying a criminal defendant’s motion for a required finding of not guilty on a complaint charging the defendant with the attempted kidnapping of a child, in violation of G. L. c. 274, § 6, where there was insufficient evidence that the defendant intended forcibly or secretly to confine the victim. [141-144] CORDY, J., dissenting.
On September 1, 2008, at approximately 1:30 P.M., the boy was walking along Dorchester Avenue in the Dorchester section of Boston, on his way to a pharmacy to pick up prescriptions for his mother. The boy testified that “a man,” later identified as the defendant, “drove right next to [him]” and stopped his vehicle, a four-door sedan. The driver’s window was open. Even though the boy could not recall the first thing the defendant said to him, he “stepped back” so that he was approximately three feet from the sedan, and “heard someone say, ‘Get into the car.’ “The boy “said ‘no’ and then walked away.” He went “straight to the pharmacy,” which was fifty yards away. The entire exchange took approximately “[t]wo seconds,” and the boy was not “face-to-face close” to the defendant. The defendant drove away. In response to the prosecutor’s question whether the boy thought the defendant was following him, the boy stated, “Kind of, yeah.”
On cross-examination, in response to the question whether the defendant followed him, the boy stated that he did not notice anything because he did not look at the vehicle after he said “no” and walked away. The boy testified that the defendant was driving back “toward the street” as he headed toward the pharmacy, and that the defendant did not pull his vehicle over a second time or speak to the boy again. The defendant never showed a weapon, got out of his vehicle, or threatened the boy.
A witness, who was in her vehicle parked across the street, saw the interaction between the boy and the defendant. She “believe[d] the car was there for a few minutes” after the interaction because she was able to note the registration plate number. After the defendant drove away, the witness saw the boy again, approached him, and asked what had happened. The boy then went home. The witness telephoned the police and gave them a description of the vehicle and its registration plate number.
The police found the defendant a short time later; he was arrested. A police officer testified that, while the defendant was in a holding cell, he read the defendant his Miranda warnings but did not have the defendant sign a waiver form. The officer testified that the defendant was a little “tipsy” but he was able to understand fully what the defendant said to him. The officer asked the defendant some questions. Relevant here is the defendant’s response to the officer that he had wanted the boy to go home with him where he planned to “listen to music” with him.
The defendant did not call any witnesses and did not testify. His defense was presented through cross-examination and argument.
Discussion. In reviewing the denial of a required finding of not guilty, we review the evidence introduced up to the time the Commonwealth rested its case to determine whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient for a reasonable jury to infer the existence of each essential element of the crime charged, beyond a reasonable doubt. Commonwealth v. Kelley, 370 Mass. 147 , 150 (1976). See Commonwealth v. Latimore, 378 Mass. 671 , 676-677 (1979). No essential element of the crime may be left to a jury’s conjecture, surmise, or guesswork. Commonwealth v. Kelley, 359 Mass. 77 , 88 (1971).
We begin by addressing the defendant’s contention that his statements to police that he wanted to take the boy home to listen to music with him were improperly admitted. We need not address the issue because, as detailed below, even considering the defendant’s statements, we conclude that there was insufficient evidence to support his conviction.
The crime of attempted kidnapping requires, in relevant part, the intent to “forcibly or secretly” confine or imprison another person “against his will,” G. L. c. 265, § 26, and an overt act toward the commission of the crime, G. L. c. 274, § 6. Commonwealth v. Banfill, 413 Mass. 1002 , 1003 (1992). A child of “tender years” is not able to give consent to be taken from a parent’s custody. Commonwealth v. Colon, 431 Mass. 188 , 189-192 (2000) (defendant’s taking willing twelve year old girl to out-of-State motel was against will of parents; girl’s “consent” to kidnapping immaterial).
In the context of the kidnapping statute, the word “confine” has been interpreted to mean “any restraint of a person’s movement.” Commonwealth v. Brown, 66 Mass. App. Ct. 237 , 241 (2006), quoting Commonwealth v. Lent, 46 Mass. App. Ct. 705 , 710 (1999). The parties have not cited, and we have not found, any discussion in our case law concerning the meaning of the phrase “secretly confine.” According to Professor LaFave, confinement is “secret” in nature “when it serves to isolate or insulate the victim from meaningful contact or communication with the public, that is, when the confinement is in a place or in a manner which makes it unlikely that members of the public will know or learn of the victim’s unwilling confinement within a reasonable period of time.” 3 W.R. LaFave, Substantive Criminal Law § 18.1(c), at 17 (2d ed. 2003). This court indorsed this definition, albeit implicitly, in Commonwealth v. Perry, 432 Mass. 214 , 215 (2000), where the defendant was convicted of murder in the first degree and kidnapping. In that case, in addition to the use of force to confine the victim, the defendant prevented the victim from telephoning his mother and from meeting with visitors who came to the house where he was being held. Id. at 231. The court concluded that the evidence was sufficient to prove that the defendant confined the victim “by force and in secret.” Id. See Commonwealth v. Brown, supra at 238-239 (although part of victim’s confinement was forcible, defendant used ruse to get her to follow him to isolated place).
The defendant argues that the Commonwealth’s evidence was insufficient to prove that he had the intent forcibly or secretly to confine the boy. We agree.
In Commonwealth v. Banfill, supra at 1003, this court reversed the defendant’s conviction of attempted kidnapping on similar facts. There, the defendant, who was driving a truck, stopped three to five feet from the complainant, a thirteen year old girl, and asked directions to a certain street. Id. at 1002. Because the defendant “looked at [her] funny” and was asking his question “in a weird way,” the girl lied, telling him that she was only visiting her grandmother and did not know where the street was. Id. Just as she was about to leave, he “told [her] to get in” his truck. Id. The girl ran away. Id. The entire interaction lasted approximately twenty-five seconds, and “the defendant did not ‘make a move toward’ her in any way, . . . open the truck door or display a weapon, and he did not ‘try to grab out’ at her.” Id. at 1002-1003. The court held that the defendant’s motion for a required finding of not guilty should have been allowed. Id. at 1003. Because the court found insufficient evidence of the defendant’s intent to kidnap the child, the court did not reach the issue whether the defendant’s statement to “get in” his truck constituted an overt act. Id.
The Commonwealth argues that the Banfill case is distinguishable because here there was sufficient evidence that the defendant intended to “secretly confine” the boy, where the defendant followed the boy after the boy refused to get into the vehicle and admitted that he wanted the boy to come home with him to listen to music. Concerning whether the defendant followed the boy, the Commonwealth asserts that there was sufficient evidence of the defendant’s criminal intent because he “commanded” the boy to “get into the car,” and because the boy testified that he “[k]ind of, yeah” thought that the defendant followed him. Assuming, without deciding, that following a child in these circumstances would be sufficient evidence of an intent forcibly or secretly to confine a child, the testimony that the defendant “[k]ind of, yeah” followed the boy is equivocal as to whether the defendant actually followed him after their interaction. Moreover, the boy testified on cross-examination that he did not “notice anything” about the defendant’s vehicle because he did not look at it once he walked away. In addition, the eyewitness believed that the defendant’s vehicle “was there for a few minutes” after the defendant’s interaction with the boy. She did not testify that the defendant subsequently followed the boy before he drove away; rather, she testified that he drove away while the boy was in the pharmacy. See Commonwealth v. Eramo, 377 Mass. 912 , 913 (1979), quoting Commonwealth v. Croft, 345 Mass. 143 , 145 (1962) (“When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof”).
We also are not persuaded that the defendant’s statements that he “wanted to take [the boy] home” to “listen to music” are sufficient to support an inference of a specific intent to “isolate or insulate the [boy] from meaningful contact or communication with the public.” 3 W.R. LaFave, supra. As discussed, there is no evidence that the defendant did anything but drive away after the boy refused to get into the vehicle. See Corson v. Commonwealth, 428 Mass. 193 , 197 (1998), quoting Commonwealth v. Mandile, 403 Mass. 93 , 94 (1988) (evidence insufficient if it relies on conjecture and speculation).
Conclusion. For the reasons set forth above, we conclude that the judge erred in denying the defendant’s motion for a required finding of not guilty.
Verdict set aside.
Judgment for the defendant.”
Attorney Ronald A. Sellon