State v. Anderson

326 September 25, 2025 No. 40

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

ANDREW ANDERSON,

Petitioner on Review.

(CC 19CR28984) (CA A177245) (SC S070956)

On review from the Court of Appeals.*

Argued and submitted November 19, 2024.

Per C. Olson, Hoevet Olson, P.C., Portland, argued the

cause and filed the briefs for petitioner on review. Also on

the briefs were Megan E. McVicar.

Kirsten M. Naito, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on

review. Also on the brief were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

Before Flynn, Chief Justice, and Duncan, Garrett,

DeHoog, James, and Masih, Justices, and Balmer, Senior

Judge, Justice pro tempore.**

MASIH, J.

The decision of the Court of Appeals is affirmed in part

and reversed in part. The judgment of the circuit court

is affirmed in part and reversed in part, and the case is

remanded to the circuit court for further proceedings.

______________

* Appeal from Deschutes County Circuit Court, Beth M. Bagley, Judge. 329

Or App 754, 542 P3d 449 (2023).

** Bushong, J., did not participate in the consideration or decision of this

case.

Cite as 374 Or 326 (2025) 327

328 State v. Anderson

MASIH, J.

Defendant was convicted of second-degree kidnap-

ping and menacing. The Court of Appeals, sitting en banc,

affirmed the convictions, but with several judges dissenting

as to various parts of the opinion. State v. Anderson, 329 Or

App 754, 542 P3d 449 (2023). We allowed review. As we now

explain, we agree with defendant that the trial court should

have granted defendant’s motion for judgment of acquittal

on the kidnapping charge, because the evidence was not

sufficient to allow a reasonable factfinder to conclude that

defendant had taken the victim “from one place to another,”

as that phrase is used in ORS 163.225(1)(a). We reverse the

Court of Appeals and the trial court on that point. However,

we affirm as to the menacing conviction. We also affirm as

to a third issue, involving the trial court’s ruling on a motion

in limine.

I. PRELIMINARY FACTS

Before moving to the legal issues presented before

this court, we begin with a brief summary of the back-

ground of the charges against defendant. Defendant and his

then-wife, J, lived in Deschutes County during the relevant

period. They had a tumultuous marriage, ultimately leading

to J petitioning for a restraining order against defendant

and defendant subsequently filing for divorce. The charges

against defendant arose from separate incidents that

occurred in December 2016 and July 2017. For his alleged

conduct during those incidents, defendant was charged (as

relevant here) with second-degree kidnapping and menac-

ing. Those charges were pleaded as constituting domestic

violence. Beyond that, however, there is almost no overlap in

the facts concerning the kidnapping charge or the facts that

relate to the menacing charge, and the facts regarding the

motion in limine are largely independent of either.

To make this opinion easier to follow, therefore, we

organize it around the issues on review: the kidnapping

charge, the menacing charge, and the ruling on the motion

in limine. Within each of those issues, we will set out the rel-

evant facts, discuss the trial court’s holding and the Court

of Appeals’ ruling, and then explain our conclusion.

Cite as 374 Or 326 (2025) 329

II. KIDNAPPING

A. Standard of Review

The legal issue regarding the second-degree kid-

napping charge turns on whether the trial court should

have granted defendant’s motion for judgment of acquittal.

A trial court must grant such a motion if the evidence and

its reasonable inferences would not permit a rational trier

of fact to find the elements of the crime beyond a reasonable

doubt. E.g., State v. Wallace, 373 Or 122, 125-26, 561 P3d

602 (2024); State v. Hedgpeth, 365 Or 724, 730, 452 P3d 948

(2019). Accordingly, we set out the facts and inferences in

the light most favorable to the state. See, e.g., State v. Soto,

372 Or 561, 563-64, 551 P3d 893 (2024) (so explaining).

B. Facts; Trial Court Ruling; Court of Appeals’ Decision

The kidnapping charge was based on events that

occurred between 8:00 and 9:00 a.m. one morning in late

December 2016, at the house owned by defendant and J in

Deschutes County. J was lying on the bed in the master bed-

room when defendant yelled at her to get out of the room.

J, who was wearing only a robe and underwear, refused to

leave. Defendant then grabbed J by the hood of her robe and

dragged her outside. That involved dragging J a total of

about 50 feet: around the bed, through the hallway and the

foyer, out the front door, across the deck and down the steps,

and about five feet into the yard.

It was about 20 degrees Fahrenheit outside, and

the grass was covered with ice and snow. There were neigh-

boring homes, and while the distance to those homes was

unclear, J indicated at trial that some neighbors were close

enough to “see everything” on the property. J attempted

to reenter the house, but she was unable to do so because

defendant was holding the door closed.1 After five to 10 min-

utes, J remembered that her car was unlocked and used the

car’s garage door opener to reenter the house.2

1

The door did not require a key; it had a keypad entry, but it did not open

when J entered the code. The jury could infer, as did J, that defendant was phys-

ically preventing the door from opening.

2

The parties also stipulated that there was a keypad entry for the garage on

the side of the garage door.

330 State v. Anderson

Approximately three years later, in 2019, the state

charged defendant with second-degree kidnapping based on

those events. The second-degree kidnapping statute, ORS

163.225, provides, in relevant part:

“(1) A person commits the crime of kidnapping in the

second degree if, with intent to interfere substantially with

another’s personal liberty, and without consent or legal

authority, the person:

“(a) Takes the person from one place to another[.]”

Defendant moved for a judgment of acquittal on the

kidnapping charge. He contended that the state had failed to

present enough evidence for a rational factfinder to conclude

either that defendant had taken J “from one place to another”

or that defendant had the required intent to “substantially

interfere” with J’s liberty. The trial court denied the motion.

After defendant was convicted, he appealed, chal-

lenging his kidnapping conviction on a number of grounds,

including renewing his contention that the trial court should

have granted his motion for judgment of acquittal.3

The Court of Appeals, sitting en banc, affirmed

the kidnapping conviction by a split decision. The major-

ity concluded (among other things) that the evidence was

sufficient to support a finding that defendant had taken J

“from one place to another,” because of the qualitative differ-

ences between J’s starting location and her ending location.

Anderson, 329 Or App at 758-59. As the majority explained:

“By moving J from a protected setting in which she

was warm and clothed with access to heat, electricity, and

plumbing, to a setting unprotected from the elements,

which were extreme at the time, with no clothing or shoes

on or available to enable her to safely get to someone who

might help, the jury could rationally infer beyond reason-

able doubt that the move isolated J and limited her ability

to move freely about.”

3

Defendant raised five assignments of error as to the kidnapping conviction.

The first assignment of error challenged the denial of the motion for judgment

of acquittal, 329 Or App at 756; the second through fourth challenged the jury

instructions, id. at 761; and the seventh contended that the sentence for kidnap-

ping was unconstitutionally disproportionate, id. at 764. Given our conclusion

on the first assignment, we do not need to address defendant’s other arguments

regarding the kidnapping conviction, or the other aspects of the Court of Appeals’

decision regarding that conviction.

Cite as 374 Or 326 (2025) 331

Id. at 759. The majority also concluded that there was suf-

ficient evidence for a rational factfinder to conclude that

defendant had the required intent to substantially interfere

with J’s liberty. Id. at 759-61.

The dissent questioned the majority’s conclusion

regarding the required act, noting that it was unclear “what

‘quality’ renders a place ‘qualitatively different’ from another

place,” but that prior case law “has focused on the qualities

of isolation and ease of control.” 329 Or App at 774 (Aoyagi,

J., dissenting). The dissent disagreed that the facts showed

the required act, noting that “defendant actually had less

control over J outside.” Id. at 776. Assuming that the act ele-

ment was met, however, the dissent nevertheless concluded

that the evidence was insufficient to support the element of

intent. Id. at 776-78 (Aoyagi, J., dissenting).4

C. Analysis

1. Overview

The statute setting out the crime of second-degree

kidnapping is ORS 163.225. It provides, in part:

“(1) A person commits the crime of kidnapping in the

second degree if, with intent to interfere substantially with

another’s personal liberty, and without consent or legal

authority, the person:

“(a) Takes the person from one place to another; or

“(b) Secretly confines the person in a place where the

person is not likely to be found.”

The question presented here involves one of stat-

utory interpretation. In construing a statute, we seek to

identify the intent of the legislature that enacted it. ORS

174.020; see, e.g., State v. Parkerson, 371 Or 716, 722, 541

P3d 874 (2023) (so explaining). In doing so, we give primary

weight to the statutory text in context, with appropriate

additional weight accorded to any relevant legislative his-

tory. See, e.g., Parkerson, 371 Or at 722; City of Portland v.

4

As noted, the majority also had concluded that the trial court did not com-

mit error in instructing the jury regarding the kidnapping charge, and that

defendant’s sentence for kidnapping was not disproportionate. Anderson, 329

Or App at 761-66. The dissent disagreed with the majority regarding the jury

instruction. Id. at 778-80 (Aoyagi, J., dissenting).

332 State v. Anderson

Bartlett, 369 Or 606, 610, 509 P3d 99 (2022); State v. Gaines,

346 Or 160, 171-72, 206 P3d 1042 (2009). When evaluating

the statutory text and context, we also consider our case law

interpreting the statute at issue. See, e.g., State ex rel Torres-

Lopez v. Fahrion, 373 Or 816, 826 n 8, 572 P3d 1045 (2025);

Parkerson, 371 Or at 725.

The second-degree kidnapping statute has been

interpreted by this court on a number of previous occasions:

State v. Garcia, 288 Or 413, 605 P2d 671 (1979); State v.

Murray, 340 Or 599, 136 P3d 10 (2006); State v. Walch, 346

Or 463, 213 P3d 1201 (2009); State v. Sierra, 349 Or 506, 254

P3d 149 (2010), adh’d to as modified on recons, 349 Or 604,

247 P3d 759 (2011); and Soto, 372 Or 561. We have not been

asked to overrule those precedents, so, under the doctrine

of stare decisis, we adhere to their interpretations of the

kidnapping statutes. See Farmers Ins. Co. v. Mowry, 350 Or

686, 693-98, 261 P3d 1 (2011) (discussing precedential effect

of prior cases interpreting statutes, and outlining limited

circumstances in which they will be overruled). Accordingly,

our analysis will focus on the analysis as reflected in those

cases.

We begin with a brief summary of the origin and

development of Oregon’s kidnapping statute before turning

to the text and context of the current statute.

At common law, kidnapping had a relatively nar-

row definition that required (among other things) that the

victim be removed from the country entirely. See Walch, 346

Or at 469 (citing William Blackstone, 4 Commentaries on

the Laws of England *219 (1769)). In the United States, the

criminal laws had steadily loosened that definition. See id.

at 469-70 (so discussing). It eventually became so broad that

even small movements and short periods of confinement

incidental to committing another crime could serve as the

basis for a kidnapping charge. Commentary to Criminal

Law Revision Commission Proposed Oregon Criminal

Code, Final Draft and Report § 99, 99-100 (July 1970)

(Commentary); see Walch, 346 Or at 470 (same). And even

as the definition of kidnapping became broader, legislation

made kidnapping one of the most severely punished crimi-

nal offenses, increasing from a misdemeanor at common law

Cite as 374 Or 326 (2025) 333

to a felony punishable by life imprisonment or death in forty-

eight states by the early 1950s. Criminal Law Revision

Commission, Article 12, Preliminary Draft No. 6, Oct 1968.

That sometimes led to defendants being charged with kid-

napping for the purpose of obtaining the death penalty or

life imprisonment for crimes that otherwise would not have

been subject to that penalty. Commentary, § 99 at 100 (giv-

ing as example People v. Chessman, 38 Cal 2d 166, 238 P2d

1001 (1951)).

In 1967, the Oregon Legislature created the

Criminal Law Revision Commission, which took on the task

of modernizing and revising the criminal code. Or Laws

1967, ch 573, §§ 1-2. The commission ultimately submitted

a Proposed Oregon Criminal Code to the legislature, which

the legislature enacted with modifications in 1971. See

Or Laws 1971, ch 743. One part of that revision included

the present kidnapping statutes, ORS 163.225 and ORS

163.235. Or Laws 1971, ch 743, §§ 98-99.5

In drafting the kidnapping statutes, the Criminal

Law Revision Commission had intended to curb the

expanded definitions of kidnapping. Commentary § 99 at

99-100; see Walch, 346 Or at 470-71; Murray, 340 Or at 604-

05 (same). Unfortunately, the commentary is “more explicit

about the tests that [the drafters] rejected than about the

test that they eventually adopted.” Walch, 346 Or at 471.

The commentary noted that New York required that the vic-

tim be confined for at least 12 hours, while the Model Penal

Code required (in part) that the victim be taken a substan-

tial distance or confined for a substantial period in a place

of isolation—but the drafters did not entirely adopt either.

Commentary § 99 at 100; see Walch, 346 Or at 471-73 (com-

mission had rejected outright New York’s 12-hour require-

ment; commission had used Model Penal Code’s “substantial

distance” requirement in early drafts, but later removed it

from act requirement and instead made it part of mental

state).

5

The second-degree kidnapping statute, ORS 163.225, was amended in 2005.

Or Laws 2005, ch 22, § 111. The first-degree kidnapping statute, ORS 163.235,

was amended in 2005 and in 2009. Or Laws 2005, ch 22, § 112; Or Laws 2009,

ch 660, § 43. Those amendments are not relevant to any of the issues presented

here.

334 State v. Anderson

Where both New York and the Model Penal Code had

sought to prevent the perceived prosecutorial overreaching

mentioned above by limiting the act element of the crime,

the Oregon drafters chose to accomplish that goal through

the intent element. Rather than require that the victim be

actually moved a specific distance or actually confined for a

specific time period, Oregon’s drafters instead required that

the defendant intend substantial movement or confinement.

See Walch, 346 Or at 473 (statute does not actually require

that victim be moved a substantial distance or confined for a

substantial period of time, “but rather [the defendant] must

intend either to move the victim a substantial distance or to

confine the victim for a substantial period of time” (empha-

sis in original; internal quotation marks omitted)).

As finally enacted, ORS 163.225 requires both a

physical act and a mental state. See State v. Wolleat, 338 Or

469, 473, 111 P3d 1131 (2005) (so noting). A person may com-

mit the crime by two different physical acts: either “tak[ing]”

the victim somewhere (paragraph (1)(a)), or “secretly

confin[ing]” the victim somewhere (paragraph (1)(b)).

See Soto, 372 Or at 567 (so noting); Sierra, 349 Or at 511

(same). Whichever physical act was involved, the person

must have acted with the mental state of intending to inter-

fere substantially with the victim’s liberty. ORS 163.225(1);

see Sierra, 349 Or at 511 (same).6 And “when the legislature

prohibited performing either of those acts with the intent

to interfere substantially with another’s ‘personal liberty,’ it

did not use the term ‘liberty’ in its broad sense. Rather, the

legislature intended to refer more narrowly to interfering

with a person’s liberty to move freely.” Wolleat, 338 Or at

474.

2. Asportation

Here, defendant was charged with kidnapping under

paragraph (1)(a), by “tak[ing] the person from one place to

another”—an element that we have traditionally referred to

as “asportation.” See Sierra, 349 Or at 511 (noting the prac-

tice). As we will explain, we conclude that the evidence was

6

The statute also requires the absence of “consent or legal authority.” See

Sierra, 349 Or at 511 (characterizing that as element of crime). That requirement

is not at issue here, so we will not discuss it further.

Cite as 374 Or 326 (2025) 335

insufficient to meet the asportation element, and so the trial

court should have granted a judgment of acquittal on that

count. We therefore do not need either to consider a second

potential aspect of the asportation element or to discuss the

intent element of kidnapping.7

Textually, the asportation element—“[t]akes the

person from one place to another”—provides little meaning-

ful guidance. Determining when a person has been “take[n]

from ‘from one place to another’ ” is, as this court explained

in Murray, “an exercise in metaphysics”:

“The words ‘from’ and ‘to’ create no problem here, because

they clearly describe the idea of movement, i.e., of a change

of position. And ‘another’ simply replicates ‘place’—i.e., the

statutory phrase fairly may be paraphrased as a matter of

standard English to require that a person be moved ‘from

place to place.’ Thus, in the final analysis, this case comes

down to the question of how one is to define the term ‘place’

for the purposes of ORS 163.225(1)(a).

“And here is where the metaphysics problem arises.

The criminal code, of which ORS 163.225 is a part, con-

tains no definition of ‘place.’ Absent a special definition, we

ordinarily would resort to dictionary definitions, assuming

that the legislature meant to use a word of common usage

in its ordinary sense. * * * But resort to a dictionary gets

us nowhere here. ‘Place’ is defined, in Webster’s Third New

Int’l Dictionary 1727 (unabridged ed 2002), as ‘an indefinite

region or expanse.’ Such a definition hardly can be said to

clarify the issue.”

340 Or at 603-04; see Sierra, 349 Or at 513 (explaining that

court has found it “somewhat vexing” to determine “the leg-

islature’s intended meaning of the word ‘place’ ”).

We have concluded that the relevant question is

whether “the defendant changes the position of the victim

such that, as a matter of situation and context, the victim’s

ending place is qualitatively different from the victim’s

7

As we summarized in Soto, the asportation element has two distinct

requirements. 372 Or at 567. We only need to address one in this opinion: move-

ment of the victim. Id. In some cases, however, there is a second requirement:

that the movement was not incidental to the commission of another crime. Id.

Here, the parties do not suggest that defendant’s movement of J was incidental to

a separate crime, and so we need not consider the second requirement further.

336 State v. Anderson

starting place.” Sierra, 349 Or at 513; see Soto, 372 Or at

567 (quoting Sierra); Murray, 340 Or at 606 (explaining that

“the ‘place’ in which something or someone may be found

and from which that something or someone may be taken is

situational and contextual”).

One consideration in determining whether there

was asportation is the distance that the victim had been

moved. Soto, 372 Or at 569; Walch, 346 Or at 475. Minimal

movement often will not be enough to constitute asporta-

tion. See Sierra, 349 Or at 516 (characterizing it as “prob-

lematic” to find asportation from “minimal movement that

effectuates little change in the victim’s position—such as,

for example, movement requiring one to step to the side,

or move from a standing position to a sitting or lying posi-

tion”). But distance must be evaluated with care, because

the asportation element does not require that the movement

be a substantial distance. As we have noted, both the text

and history of the asportation element demonstrate that

the legislature did not intend the requirement of movement

“from one place to another” to mandate that the victim be

moved a substantial distance. Walch, 346 Or at 473; see

also id. at 474 (noting that legislature had considered and

rejected “substantial distance” requirement for asportation

element); id. (legislative history confirms that “the phrase

‘from one place to another’ means something different than

‘substantial distance’ ”); Wolleat, 338 Or at 473 (asportation

element “does not require that a defendant take a victim a

specific distance, nor does it require that the distance be

substantial”). As noted previously, the substantiality of the

movement of the victim is an aspect of kidnapping’s intent

element, not its act element. See Walch, 346 Or at 473, 480-

81 (so explaining). While the act of moving the victim a sub-

stantial distance may be sufficient to meet the act element,

it is not necessary.

A critical consideration is whether the movement of

the victim “increases [the] defendant’s control over the vic-

tim, or isolates the victim from the view of others.” Soto, 372

Or at 571; see Sierra, 349 Or at 516 (same); see also Walch,

346 Or at 475 (one “important factor” in asportation is

“whether the movement served to limit the victim’s freedom

Cite as 374 Or 326 (2025) 337

of movement and increase the victim’s isolation”). That,

then, is the nature of the qualitative change that must occur

between the victim’s starting and ending points. See Soto,

372 Or at 567 (noting requirement of qualitative change);

Sierra, 349 Or at 513 (same).8

Finally, we have explained that the degree of force

used by the defendant usually is not relevant to the asporta-

tion element. See Sierra, 349 Or at 516 (concluding that that

is so “because the asportation element is defined in terms of

relative movement” and not amount of force).

With that summary of how we have interpreted the

asportation element, we now briefly recap how this court

has applied those considerations to particular cases.

In Murray, the victim was sitting in the driver’s

seat of her car in a parking lot when the defendant forced

his way into the driver’s seat, pushing the victim into the

passenger seat. 340 Or at 601-02. The victim opened the

passenger door and left as the defendant told her to get out.

Id. at 602. In its analysis of the situation and context, this

court noted that the movement of the victim was incidental

to the defendant committing another crime; that there was

no evidence that the defendant had tried to keep the victim

in the car; that the defendant did not try to “take” the vic-

tim anywhere; and that the victim had only been moved a

8

While control or isolation can be critical to the analysis, the victim usu-

ally must also be moved in more than a minimal way. That is illustrated by our

decision in Sierra. Again, Sierra had noted that it would be “problematic” to find

asportation from such “minimal” movements as “requiring one to step to the side,

or move from a standing position to a sitting or lying position.” 349 Or at 516.

Sierra then added:

“[B]ecause neither isolation nor control of the victim is required by the word-

ing of ORS 163.225(1)(a), those considerations cannot be substituted for the

ultimate inquiry whether the victim was moved from one place to another.”

Id.

In context, we understand Sierra to hold that minimal movements are

unlikely to qualify as movement “from one place to another,” even if the move-

ment may also have increased the victim’s isolation or limited their freedom of

movement. The victims in Sierra had been moved from the front of the store to

behind a desk and then made to kneel. Both those things would have increased

the victims’ isolation and limited their freedom of movement. But the movement

was minimal because it occurred entirely within a single room, so Sierra con-

cluded that that movement did not amount to asportation.

338 State v. Anderson

minimal distance. See id. at 606.9 Accordingly, this court

held that the trial court should have granted the defendant

a judgment of acquittal on the second-degree kidnapping

charge. Id. at 607.

In Walch, the defendant had dragged the victim 15

feet across her driveway and forced her into the trunk of a

car. 346 Or at 476. In determining whether the asportation

element had been met, the court evaluated both the victim’s

starting point and ending point, as well as the distance. The

victim’s starting position was in her driveway, “an open area

from which she might have run away or been seen by the

people inside the house.” Id. When the defendant attacked

the victim, he moved her 15 feet. Id. As to the endpoint of the

movement, this court emphasized two things. First, the vic-

tim was placed into a car, “a location (and an object) intended

to quickly move people a distance of some miles.” Id. Second,

the victim was specifically placed into the trunk of the car,

“a place in which * * * a human being could be put for almost

no innocent purpose.” Id. (internal quotation marks and cita-

tion omitted). Because the defendant had “moved the victim

from one place (the open driveway) to a qualitatively differ-

ent, more mobile and isolated place (the trunk of a car),” the

court held that there had been asportation. Id.

In Sierra, the defendant had become offended by the

statement of a convenience store clerk and decided to scare

the clerk into apologizing. 349 Or at 509. The defendant got

a crossbow and forced the clerk back into the store, making

him kneel behind a desk. Id. The second-degree kidnapping

charges against defendant were based on what happened

when two off-duty employees of a youth correctional facility

entered the store. Id. at 509-10. The defendant first ordered

them to leave; when they refused, the defendant ordered them

to move behind the desk and kneel beside the clerk, then pro-

ceeded to yell and point the crossbow at them. Id. at 510.

9

Regarding the distance the victim had been moved: The Murray opinion

had framed that as the victim not having been moved a substantial distance. 340

Or at 606. In a later opinion, this court would explain in detail that Murray’s

framing should not be read as a holding that the act requires the victim to have

been moved a substantial distance. See Walch, 346 Or at 479-81 (reviewing the

legislative history cited by Murray as well as prior case law on the point, and

explaining that Murray had created an “inaccurate impression”).

Cite as 374 Or 326 (2025) 339

As to the off-duty corrections employees, this court

concluded that there was not enough evidence for a rational

factfinder to find asportation. Id. at 518.10 The beginning

and ending locations were within the same room of the same

building. Id. at 517. Although there were “brief physical

movements,” they were “changes of position and posture in

the same general place, not a movement of victims to a qual-

itatively different place.” Id. Moreover, this court explained,

the movement appeared incidental to the defendant’s inde-

pendent crimes of unlawful use of a weapon and menacing.

Id. at 517-18.

Our most recent decision on asportation issued

last year. In Soto, the victim had lived in a three-bedroom

apartment with her children. 372 Or at 564. When the vic-

tim opened her apartment door to a knock, the defendant

pushed into the apartment and grabbed the victim. Id. He

carried the victim to her bedroom, where he threw her on

the bed. Id. He closed the window, closed the door to the

bedroom of the victim’s children, and turned up the volume

on the television before dragging the victim into a bathroom

attached to that bedroom. Id. The total distance that the

defendant moved the victim was about 31 feet. Id. at 572.

This court agreed with the state that there was suf-

ficient evidence for a factfinder to find asportation. “The key

question,” this court explained, was “whether the victim was

moved to a qualitatively different location, a question that

is informed by considerations including whether the change

in location served to increase the victim’s isolation and limit

her freedom of movement.” Id. at 572-73. The victim had

only been moved a short distance, but while that was rele-

vant, it was not controlling. Id. at 572. Nor was the mere fact

that the victim had been moved within her own apartment

determinative. Id. at 573. Instead, the controlling consider-

ation was that the defendant had moved the victim between

qualitatively different locations: the more open location at

the door, to the more isolated location in the bedroom and

later the associated bathroom. As this court explained:

10

The defendant did not dispute that, as to the convenience store clerk, the

state had presented sufficient evidence to support a finding of asportation. Sierra,

349 Or at 518 n 10.

340 State v. Anderson

“The entryway of the victim’s apartment was a more open

area compared to the primary bedroom and bathroom. At

the front door of the apartment, the victim had more of an

opportunity to run away or be seen or heard by others—

perhaps by neighbors or her children who were sleeping

in a nearby bedroom with an open door. After moving the

victim from the entryway of her apartment to the primary

bedroom, defendant closed the door of the children’s bed-

room, turned up the music in the primary bedroom, and

closed the window and door of that room. He then moved

the victim into the adjoining bathroom and closed the bath-

room door. A factfinder could have found that defendant’s

actions effected a qualitative change in the victim’s location

by physically moving her to a place that increased her iso-

lation, reduced her ability to escape, and reduced the like-

lihood that she would be seen or heard by others nearby.”

Id. at 574-75.

3. Application

With that background, we now apply those princi-

ples to this case. Again, the question before us is whether a

rational factfinder could find that the defendant had “take[n]

J from one place to another”—not as those words might be

understood in ordinary speech, but within the technical

legal meaning of that phrase as used in the second-degree

kidnapping statute. As we will explain, we agree with defen-

dant that the evidence presented by the state was insuffi-

cient to support such a finding.

Again, the “key question” for the asportation ele-

ment is whether defendant took J from one place to another,

“qualitatively different” place. Soto, 372 Or at 572; Sierra,

349 Or at 513. We acknowledge that the distance that J was

moved here was not minimal, and that there were some

qualitative differences between the starting and ending

points, as the Court of Appeals’ majority noted: the starting

place was warm and inside, while the ending place was cold

and outside. Anderson, 329 Or App at 759.

But we have also explained that the qualitative

change between places is evaluated in terms of the overall

purpose of the kidnapping statute: to “protect[ ] the victim’s

personal liberty or freedom of movement.” Walch, 346 Or at

Cite as 374 Or 326 (2025) 341

475 (internal quotation marks and citation omitted). Thus,

the movement generally must have “served to limit the vic-

tim’s freedom of movement and increase the victim’s isola-

tion.” Id.; see Soto, 372 Or at 572-73 (same).

That consideration limits both the qualities that we

consider and the direction in which the qualitative change

occurred. That is shown by both Murray and Walch, which

involved movement with starting points and ending points

that were inside and outside a car. In Walch, the starting

point was outside the car, and the ending point inside the

trunk; the movement thus increased the victim’s isola-

tion, and the trunk restricted her freedom of movement.

Accordingly, we found that the asportation element had

been met. In Murray, by contrast, the movement was from

inside the car to outside, and the endpoint was the park-

ing lot of a store. The movement thus decreased the victim’s

isolation and increased her freedom of movement: she was

less isolated and more visible at the endpoint, and she could

move much more freely than while seated in her vehicle. And

while this court did not frame the analysis in Murray in that

way, it held—consistently with what we have explained—

that the asportation element had not been met.

Applying those considerations here, we conclude

that, although J was moved to a location that was quali-

tatively different in some respects, it was not qualitatively

different in ways that support a conviction for kidnapping,

because—as offensive as the conduct was—it did not serve to

increase J’s isolation or restrict her freedom of movement. On

the contrary, she was moved from an interior location, where

her movements were subject to at least some structural con-

straints (so long as she chose to remain inside) and where

she would not have been visible to neighbors or passersby,

to an outside location where she was visible to the public (as

noted, the record reflects that the property had neighbors)

and where she could travel in any direction she chose.

The Court of Appeals’ majority placed weight on the

below-freezing temperature outside, and the fact that J was

barefoot and unclothed.11 Anderson, 329 Or App at 760-61.

11

The record reflects that J was in her underwear and had a robe that defen-

dant had pulled off J’s body and thrown on the grass next to her.

342 State v. Anderson

We agree that those facts would have contributed to J’s sense

of humiliation, as the Court of Appeals reasoned, but they

fall short of showing that J was made more isolated or had

her freedom of movement constrained as we have applied

those concepts in our case law. It is significant, we reiterate,

that J was moved to a more exposed location, during the day,

with neighbors in some proximity, and with J able to access

her car to ameliorate the effects of the cold or use the garage

door opener to reenter the house. And as previously noted,

the parties had stipulated that there was a keypad next to

the garage door that would also allow entry to the garage.

In short: considering the facts in the light most

favorable to the state, we nevertheless conclude that no rea-

sonable factfinder could find that defendant had moved J

“from one place to another” as that phrase is used in the

second-degree kidnapping statute. The trial court should

have granted defendant’s motion for judgment of acquittal.

III. MENACING

As with the kidnapping charge, we must consider

whether the evidence—considered in the light most favor-

able to the state—would allow a reasonable factfinder to

find all the elements of menacing.

The menacing charge was based on events that

occurred in July 2017—seven months after the events

charged as kidnapping. J, who was driving home, was

talking on the phone with defendant when he became angry

with her. When she arrived, she parked, got out of the car,

and told defendant that she was going away for a few days

for “some space.” Defendant got angry and began yelling.

Using a power drill, he drilled into the side of the J’s car,

then drilled into both tires on the driver’s side, leaving them

flat. He also threw a Bluetooth speaker at the car hard

enough to leave a dent. When J objected to what defendant

was doing to her car, defendant told her that she was “lucky

he did it to the car and not to [her].”12

12

J testified that she was so frightened that defendant might hurt her that

she remained outside so that she would have a chance to run to a neighbor’s

house. When J told defendant sometime shortly afterward that she was afraid he

would kill her someday, defendant responded: “If I was going to kill you, I’d bury

you in the woods and cover your body with lye, and nobody would ever find you.”

Cite as 374 Or 326 (2025) 343

Defendant was charged with menacing under ORS

163.190. That statute provides, in relevant part:

“A person commits the crime of menacing if by word or

conduct the person intentionally attempts to place another

person in fear of imminent serious physical injury.”

Defendant moved for a judgment of acquittal on the

menacing charge, contending that defendant’s violence was

entirely directed to the car instead of J, and so no reason-

able factfinder could find that defendant intended to create

in J a “fear of imminent serious physical injury.” The trial

court denied the motion, explaining that defendant’s words

and conduct, considered as a whole, would permit the jury to

“infer that all of those things were said and done for the pur-

pose of placing [J] in fear that defendant * * * would cause

her serious physical injury imminently.”

On appeal, defendant renewed his contention that

menacing could not be shown by defendant merely drilling

into J’s car and tires without affirmatively brandishing the

drill at her. The Court of Appeals, again by a split opinion,

affirmed that conviction as well. Anderson, 329 Or App at

766-68. The majority concluded that defendant’s acts and

words, taken together, would allow a rational factfinder to

find that defendant intentionally caused J to fear for her

safety. Id. at 767-68 (defendant’s acts and words “could lead

a rational jury to conclude, beyond a reasonable doubt, that

he was threatening J and that his threat was not empty,

but was instead a threat of serious and imminent harm”).

The dissent disagreed; in its view, violence against an object

does not “place a person in fear of imminent serious physical

injury” unless either the violent act itself risked striking J,

or the defendant then took some additional step to affirma-

tively suggest an intent to then shift the violence to J. Id. at

781-82 (Aoyagi, J., dissenting).

We previously interpreted the menacing statute in

State v. Garcias, 296 Or 688, 679 P2d 1354 (1984). To address

the claim that menacing violated the Oregon Constitution’s

protection of free speech, this court extensively reviewed

As we will explain, our resolution here does not depend on those additional facts:

Defendant’s actions were already sufficient to allow a reasonable factfinder to

find menacing.

344 State v. Anderson

the history of the crime of assault and the development of

menacing as part of the revisions to the Oregon Criminal

Code. Id. at 692-98; see Commentary, § 95 at 96-97 (briefly

discussing background and justification for creating “new

offense of menacing”). This court summarized the “concern”

of the statute as “preventing harm to the victim in the form

of tension, alarm and whatever injury may result from the

confrontation.” Garcias, 296 Or at 697. Even words alone are

sufficient, provided that they are being used “as a means to

attempt to evoke fear of assault in the hearer.” Id. at 698.

The statute implies a “hostile relationship between the actor

and victim” and requires that “the threatened harm must

be imminent and serious.” Id. at 699.

We understand defendant’s position to be that

defendant’s violent actions here were “directed entirely” at

the car and not J. His statement that J was “lucky” conveyed

that he did not intend to hurt her.

We disagree. It would be possible for acts similar

to defendant’s to be unrelated to any threat to a person—if,

for example, someone engaged in a mere act of vandalism

near another, or if the person attacked the car because they

were frustrated and angry with the vehicle. But defendant’s

acts here were not of that nature, and they were not discon-

nected from each other. They were part of a single, larger

context, and a rational factfinder could consider them as a

whole.

In this case, defendant’s anger and frustration were

directed, solely and specifically, at J. The jury could ratio-

nally conclude that defendant demonstrated his willingness

to commit immediate violence against J by carrying out

an act of actual violence, in her presence, against a proxy

for her: her car. The degree of defendant’s violence was not

trivial, but substantial: He used a power drill to flatten two

tires, and then he threw a heavy object to dent the vehi-

cle. Moreover, defendant’s act of flattening two tires could

rationally be interpreted as defendant having intended to

deprive J of a way to escape his rage and potential violence.

Defendant’s statement not only confirmed to J that she

was the target of his anger, it also showed that defendant

was ready and willing to make her the immediate target

Cite as 374 Or 326 (2025) 345

of violence—she was, by his own words, “lucky” he had not

already done so.

Defendant’s targeted anger at J, his actual violence

against J’s property in her immediate presence, and his

words confirming his intent to make her feel threatened and

at his mercy, are sufficient to support a finding that defen-

dant intentionally attempted to place—and did place—J in

fear of imminent serious physical injury. The trial court cor-

rectly denied the motion for judgment of acquittal.

IV. MOTION IN LIMINE

Defendant’s final issue on review relates to the trial

court’s ruling that granted, in part, a motion in limine filed

by the state. The parties dispute the scope of the motion

and the trial court’s ruling, both of which we discuss further

below.

The motion related to whether defense counsel would

be permitted to present evidence and argument suggesting

that J might have fabricated the allegations to gain a tacti-

cal advantage in their marital dissolution proceeding. The

marital dissolution proceeding had been filed by defendant

after J left him, returned to her parents’ home in California,

and filed for a restraining order against defendant within

weeks of the July 2017 incident charged as menacing.

In the trial court, in the Court of Appeals, and here,

the parties have consistently distinguished between the sub-

jective and the objective aspects of that contention: the dif-

ference between whether J believed she might obtain a tacti-

cal advantage, versus whether J in fact and in law actually

would obtain a tactical advantage. On review, defendant’s

argument is premised on the trial court having allegedly

prohibited defense counsel from arguing that J subjectively

believed she would gain a tactical advantage. Defendant’s

brief here summarizes his position as follows:

“[D]efendant should have been permitted to ask the jury

to draw the inference that J made the allegations of abuse

because she believed that she would gain a tactical advan-

tage in the looming dissolution matter.”

346 State v. Anderson

Defendant’s brief repeatedly emphasizes that focus on J’s

subjective beliefs, arguing that defendant should have

been permitted to ask the jury to infer that J “subjectively

believed” she would benefit; contending that defendant had

argued in the trial court that the issue was J’s “subjective

belief” at the time; asserting that the Court of Appeals had

held defendant had made no offer of proof that J “would tes-

tify that she believed” she would benefit; and asserting that

defendant should not be required to ask J directly to “admit

that she believed” she would benefit.

Defendant bases his contention that the trial court

excluded argument about J’s subjective beliefs on the follow-

ing statement:

“[U]nless and until I hear something further and more spe-

cific about why and how the domestic relations case should

be drawn into this and how any sort of testimony or evi-

dence, you know, would establish a tactical advantage, real

or perceived, in the dissolution, that is not an area that I’m

going to allow inquiry into.”

(Emphasis added.)

We do not agree with defendant’s understanding of

the trial court’s ruling. The statement that defendant relies

on came at the very end of an extensive colloquy between

defendant, the prosecutor, and the trial court—a colloquy

that covers nearly 40 pages of transcript. But the trial court’s

other statements, in context, show that the court only pro-

hibited defendant from arguing that J objectively received

a tactical advantage from the allegations. The trial court

simply misspoke when it referred to a “perceived” tactical

advantage.

As a preliminary matter, the state itself had

expressly stated that it was “fair game” for defense counsel

to present evidence of J’s subjective beliefs about whether

she might obtain a tactical advantage in the dissolution pro-

ceeding. The trial court agreed:

“* * * I think everybody concedes [that J] can be asked, you

know, did you make these criminal allegations in order to

gain some sort of advantage in your dissolution case, you

know, that is certainly fair game.”

Cite as 374 Or 326 (2025) 347

The court instead asked defendant “whether there’s an

intent to go beyond that.”

Later, the trial court again made the same point:

“I’m going to reiterate that I believe it is appropriate

in terms of, you know, trying to establish or elicit testi-

mony from [J] about her potential motive or bias or interest

against defendant that she made reports to law enforce-

ment or whatever enforcement agency of, you know, per-

ceived or not infractions or offenses of release agreements

or [Oregon Liquor Control Commission] licensing agree-

ments or anything along those lines, you know, with the

inference being that she has some motive against him.

“I’m not going to permit questioning or argument that

suggests that that somehow gives her a tactical advantage

in the dissolution.”

The court’s explanation of its ruling also focused on

the actuality of any benefit, rather than whether J might

subjectively have believed there to be a benefit. The state

had argued that a statutory presumption would lead to mar-

ital assets generally being divided equally between the par-

ties, while defendant countered that the trial court retains

discretion to make whatever distribution is just and proper

under the circumstances. See ORS 107.105(1)(f) (how court

will determine division of marital property). On these facts,

the trial court concluded, J would not gain an objective tacti-

cal advantage, and suggesting otherwise would confuse the

jury:

“[T]he part about the Court also being able to make a just

and proper distribution of property based on all the circum-

stances. I’ve been handling divorce cases, probably close to

a thousand over the last nine years. I’m not aware of any

sort of case law suggesting that criminal conduct[ ] unre-

lated to the dissolution action is a circumstance that the

Court can consider in making a just and proper distribu-

tion of property.

“So, I think it is, in fact, confusing and misleading and

prejudicial to suggest that not only did [J’s] conduct demon-

strate some sort of motive or bias against defendant, * * *

but that they also provided her with some sort of advantage

in the dissolution.

348 State v. Anderson

“It’s that second part that I believe is not consistent

with [OEC] 403,[13] because that does mislead the jury

into thinking that it would allow her some sort of tactical

advantage.”

The court then expanded on that idea:

“So, I don’t want this trial, and I don’t believe it’s appro-

priate for this trial to go far afield of the criminal matters

at issue and to have a side trial about what is happening

in their domestic relations case, which would involve testi-

mony that is not otherwise relevant, which would involve

witnesses who are not otherwise relevant, and involve a

lot of essentially legal judgment in terms of when and why

things happened.”14

We return to defendant’s argument on review. In

that respect, defendant does not argue that the trial court

was legally incorrect as to whether J would objectively gain

a tactical advantage from false allegations. Defendant also

13

OEC 403 provides: “Although relevant, evidence may be excluded if its pro-

bative value is substantially outweighed by the danger of unfair prejudice, confu-

sion of the issues, or misleading the jury, or by considerations of undue delay or

needless presentation of cumulative evidence.”

14

The trial court’s oral summary of its ruling on the motion in limine was

well organized and comprehensive. Although it addresses matters not discussed

in this opinion, we set it out here:

“So, motion in limine number one is decided as follows. Defense may

question [J] about the reasons for her fleeing or leaving the area and whether

or not outstanding payroll taxes that were owed were any factor in that.

“* * * * *

“Defense may question [J] about whether or not she attempted to seek the

assistance of the District Attorney’s Office or any of their personnel in resist-

ing subpoenas that may have been issued in her domestic relations case.

“Defense may question [J] about whether she made any reports to law

enforcement agencies, regulatory agencies, or any other entities to report,

you know, potential release agreement violations, law violations, or anything

along those lines with the purpose of there being some sort of negative conse-

quence for [defendant].

“Defense may question [J] about the timing of her report to law enforce-

ment about the facts and circumstances that comprise the current indict-

ment. Defense may not ask the [J] or any other witness about the timing of

the grand jury presentment.

“Defense may not ask questions or otherwise argue that [J], through

some of the actions that I’ve just discussed that I’m going to allow inquiry

into, obtained a tactical advantage in the dissolution case.

“Defense may not question [J] about any pendente lite orders that were

requested and granted in the parties’ domestic relations case.”

Cite as 374 Or 326 (2025) 349

does not identify any specific evidence that he contends that

the trial court had erroneously excluded.15 Defendant only

asserts that the trial court prohibited him from arguing

that J subjectively believed she would gain a tactical advan-

tage. As we have explained, the trial court did not so rule.

Accordingly, we affirm the trial court’s ruling.

V. CONCLUSION

For the reasons explained above, we agree with

defendant that the trial court should have granted the

motion for judgment of acquittal as to the second-degree

kidnapping count. In our view, the evidence was not suffi-

cient to permit a rational factfinder to find the asportation

element of kidnapping. We agree with the state, however,

that the trial court correctly denied defendant’s motion for

motion for judgment of acquittal on menacing. Finally, we

reject defendant’s argument that the trial court erred in

granting the state’s motion in limine.

The decision of the Court of Appeals is affirmed in

part and reversed in part. The judgment of the circuit court

is affirmed in part and reversed in part, and the case is

remanded to the circuit court for further proceedings.

15

In the Court of Appeals, defendant argued that the trial court had pro-

hibited him from introducing evidence—specifically, from examining J about

whether she subjectively believed her allegations would give her a tactical advan-

tage. Defendant also relied heavily on OEC 609-1, which authorizes a party to

introduce evidence of bias or interest. Taken together, that may explain why the

Court of Appeals rejected his argument based on the failure to make an offer of

proof. See Anderson, 329 Or App at 772-73 (explaining that OEC 609-1 “applies

to evidence” (emphasis in original)). Defendant does not renew that argument on

review. Regardless, our examination of the transcript shows that the trial court

did not limit defendant’s questioning in the way he had claimed in the Court of

Appeals. Again, the court expressly stated that it was “fair game” for defendant

to ask those questions.