6.5-3 Kidnapping in the Second Degree -- § 53a-94
Revised to June 12, 2009
The defendant is charged [in count __] with kidnapping in the second degree. The statute defining this offense reads in pertinent part as follows:
a person is guilty of kidnapping in the second degree when (he/she) abducts another person.
For you to find the defendant guilty of this charge, the state must prove beyond a reasonable doubt that the defendant abducted <insert name of 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.>
[<Include the following when a related offense is charged or when the evidence supports the commission of an uncharged offense:>2
<Use one of the following, depending on whether the other offense is charged or not:>3
In this case, the defendant is also charged with <identify crime> in count __. <Refer back to the instruction on that count.>
The state has offered evidence that the defendant committed another offense, although the defendant has not been charged with that offense, specifically <identify crime>. <List the elements of the crime.>
As you can see there is no element of restraint for this offense. Nevertheless some interference with the complainant's liberty may be necessary or incidental to that offense.
To establish the intent required for abduction, 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 is necessary to commit another offense, here <identify other crime>. 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 offense. In other words, if the confinement or movement is so much a part of the other offense that it could not have been committed without such acts, 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 another offense is a question of fact for you to determine. In determining whether the defendant intended to prevent the complainant's liberation beyond the degree necessary to commit the other offense, 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 the separate offense,
whether the restraint was inherent in the nature of the separate offense,
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 separate offense.]
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>.
If you unanimously find that the state
has proved beyond a reasonable doubt each of the elements of the crime of
kidnapping in the second 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
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 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.
3 A defendant is entitled to an instruction that he or she cannot be convicted of kidnapping if the restraint imposed on the victim was merely incidental to another offense, regardless of whether the state elects to try the defendant for the other offense. See State v. Salamon, supra, 287 Conn. 550 n.35; State v. Sanseverino, supra, 287 Conn. 621.
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.