State v. Burton

| iSAUNDERS, Judge,

dissenting in part and concurring in part.

I respectfully dissent. The record shows that the defendant forcibly seized and carried his victim from the living room into the bedroom whereupon he sexually abused her. This evidence, as recited by the majority, supports the jury’s finding of a conviction of second degree kidnapping. The evidence further shows that after having been sexually abused, the victim got off of the bed, pulled on her clothes, and attempted to leave the room whereupon the defendant threw her back upon the bed, pulled down her clothes again and once again, sexually abused her and attempted to commit forcible rape. This second assault upon the victim happened after the actions necessary to find a kidnapping had been completed and evidence of this second assault was not necessary to support the conviction of second degree kidnapping.

| ^Accordingly, I believe this evidence justified the jury in its finding that two separate and distinct crimes were committed and I would affirm the finding of the jury.

I agree with the majority in its finding of errors patent which needs to be addressed by the trial court and also agree that the conviction for second degree kidnapping should be affirmed.