6.5-2 Kidnapping in the First Degree -- § 53a-92 (a) (2)
Revised to June 12, 2009
The defendant is charged [in count __] with kidnapping in the first degree. The statute defining this offense reads as follows:
a person is guilty of kidnapping in the first degree when (he/she) abducts another person and restrains the person abducted with intent to <insert appropriate subsection:>
§ 53a-92 (a) (2) (A): inflict physical injury upon (him/her) or violate or abuse (him/her) sexually.
§ 53a-92 (a) (2) (B): accomplish or advance the commission of a felony.
§ 53a-92 (a) (2) (C): terrorize (him/her) or a third person.
§ 53a-92 (a) (2) (D): interfere with the performance of a government function.
For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:
Element 1 - Abducted another person
The first element is that the defendant abducted another person. "Abduct" means to restrain a person with the intent to prevent (his/her) liberation by <insert as appropriate:>
secreting or holding (him/her) in a place where (he/she) is not likely to be found. There need be no evidence of the use or threatened use of force. The defendant need only have effectively hidden <insert name of person> or left (him/her) in a place where (he/she) was not likely to be found.
using or threatening to use physical force or intimidation. The defendant does not need to actually use force. (He/She) need only threaten to use force in such a manner that <insert name of other person> reasonably believed that force would be used if (he/she) tried to escape.
"Restrain" means to restrict a person's movements intentionally and unlawfully in such a manner as to interfere substantially with (his/her) liberty by moving (him/her) from one place to another, or by confining (him/her) either in the place where the restriction commences or in a place to which (he/she) has been moved, without consent. There is no requirement that the movement be of any specific distance or that the confinement last any specific period of time. There need not be any movement at all -- the person could be confined by preventing (him/her) from leaving a place where (he/she) was.
Any apparent consent on the part of <insert name of other person> to the movement or confinement must have been actual and not simply acquiescence brought about by force, fear, shock, or deception. <Insert as appropriate:>
<If consent is at issue:> The act of consent must have been truly voluntary. Consent may be express or you may find that it is implied from the circumstances that you find existed. Whether there was consent is a question of fact for you to determine. The defendant has no burden to prove consent. The state must prove the lack of consent.
<If person abducted is less than sixteen or an incompetent person:> Without consent in this case means by any means whatever1, including acquiescence of the person, if (he/she) is (a child less than sixteen years old / an incompetent person) and (the parent or guardian / person or institution having lawful control or custody of (him/her)) has not acquiesced in the movement or confinement.
In abducting <insert name of person>, the defendant must have specifically intended to prevent (his/her) liberation. A person acts "intentionally" with respect to a result when (his/her) conscious objective is to cause such result. <See Intent: Specific, Instruction 2.3-1.>
Element 2 - Intent to do further harm
The second element is that the defendant abducted <insert name of person> with the specific intent to <insert as appropriate:>
§ 53a-92 (a) (2) (A): inflict physical injury on the person. "Physical injury" is defined as impairment of physical condition or pain. It is a reduced ability to act as one would otherwise have acted. The law does not require that the injury be serious. It may be minor.
§ 53a-92 (a) (2) (A): violate or abuse the person sexually. "To violate or abuse the person sexually" has no technical meaning, and you are to attach to these terms their ordinary common meaning.
§ 53a-92 (a) (2) (B): accomplish or advance the commission of a felony. A felony is an offense for which a person may be sentenced to a term of imprisonment in excess of one year.
§ 53a-92 (a) (2) (C): terrorize the person or a third person. To terrorize means to cause intense fear or apprehension.2
§ 53a-92 (a) (2) (D): interfere with the performance of a government function.
It is not necessary that actual (physical injury / sexual violation or abuse / commission of a felony / terror of another person / interference with the performance of a government function) be proved, as long as you determine that the defendant intended to <insert the allegations>, and abducted <insert name of person> with that intent.
A person acts "intentionally" with respect to a result when (his/her) conscious objective is to cause such result. <See Intent: Specific, Instruction 2.3-1.>
To clarify the intent aspects of this count. Under the first element, the abduction, the defendant must have intended to prevent the liberation of <insert name of person>, and that prevention of liberation must have been accomplished. Under the second element, the defendant must have prevented the liberation of <insert name of person> with the intent to commit <insert allegation of other intended criminal conduct>. The defendant must have had both intentions at the time of the abduction.
You must consider these two intentions in a further light.3 It is alleged that the restraint used against <insert name of person> was for the purpose of <insert allegations>. It is not necessary to restrain a person to <insert allegations>. Nevertheless, some interference with the person's liberty may be necessary or incidental to <insert allegations>.
To establish the defendant's intent to prevent the liberation of <insert name of person> independent from the intent to <insert allegations>, the state must prove that the defendant intended to prevent the complainant's liberation for a longer time or to a greater degree than that which would be necessary to <insert allegations>. In this regard, the defendant's intent to prevent the complainant's liberation may be manifested by confinement or movement that is more than merely incidental to the other intended acts. In other words, if the confinement or movement is so much a part of the other conduct that it could not be accomplished without such restraint, then the requisite intent to prevent the complainant's liberation has not been established. There is, however, no minimal period of confinement or degree of movement necessary to establish kidnapping.
Whether the movement or confinement of the complainant is merely incidental to other conduct is a question of fact for you to determine. In determining this, you may consider all the relevant facts and circumstances of the case, including, but not limited to, the following factors:4
the nature and duration of the complainant's movement or confinement by the defendant,
whether that movement or confinement occurred during the commission of other conduct,
whether the restraint was inherent in the nature of the other conduct,
whether the restraint prevented the complainant from summoning assistance,
whether the restraint reduced the defendant's risk of detection, and
whether the restraint created a significant danger or increased the complainant's risk of harm independent of that posed by the other conduct.]
As I said before, it doesn't matter whether the defendant committed another criminal act or not. What matters is what (his/her) intent was at the time of the alleged abduction.
[<Include if the defendant is also charged with the attempt or completion of the offense:>5 So determining the defendant's intent for purposes of the second element is completely separate from your deliberations on count __.]
Consider all of the evidence when deciding on what the defendant intended to do. <Insert Evidence of Intent, Instruction 2.3-2.>
In summary, the state must prove beyond a reasonable doubt that the defendant abducted <insert the name of the other person>, and that (he/she) intended to <insert specific allegations of intent>.
If you unanimously find that the state
has proved beyond a reasonable doubt each of the elements of the crime of
kidnapping in the first degree, then you shall find the defendant guilty. On the
other hand, if you unanimously find that the state has failed to prove beyond a
reasonable doubt any of the elements, you shall then find the defendant not
1 The "any means whatever" language was intended "to protect young children and incompetent persons from being kidnapped when the victim agrees to go with the kidnapper because of promises of favors or gifts. A competent adult's actual consent to the restraint would negate lack of consent if not induced by deception, force, fear or shock; in other words, with no compulsion or deception. . . . The 'any means whatever' language should not be given in an instruction when . . . the victim is a competent adult." State v. Benjamin, 86 Conn. App. 344, 355 (2004).
2 See State v. Dyson, 238 Conn. 784, 798-99 (1996) ("[w]hile it seems likely that every kidnapping would induce some degree of fear on the part of the abductee, not every perpetrator possesses the specific intent to terrorize his victim"); State v. Crudup, 81 Conn. App. 248, 261, cert. denied, 268 Conn. 913 (2004).
3 State v. Salamon, 287 Conn. 509 (2008), State v. Sanseverino, 287 Conn. 608 (2008), and State v. DeJesus, 288 Conn. 418 (2008), made a significant change to the law of kidnapping. The trial court should carefully review those cases before using this instruction.
4 State v. Salamon, supra, 287 Conn. 548. These factors are the more commonly occurring factual scenarios that might support a finding of intent to restrain beyond that necessary to commit the underlying crime, but they are only illustrative. Factors should only be included if relevant, and the trial judge may include other factors that appear in the case. The instruction must be tailored to the evidence presented by the state.
Include only if there is another charge arising out of the same conduct that
would support an inference of intent for purposes of the second element. Of the
possible other criminal conduct intended, only committing a felony is likely to
map exactly to another crime charged in the information. While a criminal charge
may result from the other conduct, it is irrelevant to the defendant's intent
for purposes of this instruction. The same evidence, for example, that supports
an inference that the defendant intended to sexually violate or abuse the person
may also support a charge of sexual assault, but it may not. In addition, the
defendant may not have made enough significant steps towards the other intended
crime to support a charge of an attempted crime.