State v. Anderson

754 December 28, 2023 No. 684

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ANDREW ANDERSON,

Defendant-Appellant.

Deschutes County Circuit Court

19CR28984; A177245

En Banc

Beth M. Bagley, Judge.

Argued and submitted December 22, 2022, resubmitted

en banc September 25, 2023.

Per C. Olson argued the cause for appellant. Also on the

briefs were Megan E. McVicar and Hoevet Olson, PC.

Timothy A. Sylwester, Assistant Attorney General,

argued the cause for respondent. Also on the brief were Ellen

F. Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Lagesen, Chief Judge, and Ortega, Egan, Tookey,

Shorr, Aoyagi, Powers, Mooney, Kamins, Pagán, Joyce,

Hellman, and Jacquot, Judges.

MOONEY, J.

Affirmed.

Mooney, J. filed the opinion of the court in which Lagesen,

C. J., and Egan, Shorr, Powers, Kamins, Joyce, and Hellman,

JJ., joined.

Aoyagi, J., dissented and filed an opinion in which Tookey,

J., joined, and in which Pagán,and Jacquot, JJ., joined in

part, and in which Ortega, J., separately joined in part.

Cite as 329 Or App 754 (2023) 755

756 State v. Anderson

MOONEY, J.

A jury found defendant guilty of two separate

crimes involving the same victim, based on distinct sets

of facts that occurred on different days. Defendant appeals

from the judgment of conviction that was thereafter

entered against him for each of those crimes: kidnapping

in the second degree, ORS 163.225, and menacing, ORS

163.190(1), both of which constituted domestic violence,

ORS 132.586(2).

Defendant and the victim, J, moved to Bend from

California in 2014 to start a legal marijuana business. They

were married in 2015. The marijuana business was success-

ful; the marriage was not. Several days after the last of the

events that formed the basis of the jury’s guilty verdicts, J

moved to California to be with her parents. She sought a

restraining order against defendant in that state and filed

for legal separation. Defendant, in turn, filed for divorce in

Oregon. The events that are the subject of this criminal pro-

ceeding came to light through those legal proceedings.

I. KIDNAPPING IN THE SECOND DEGREE

A. The First Assignment: Denial of MJOA

Defendant first assigns error to the trial court’s

denial of his motion for judgment of acquittal (MJOA) argu-

ing that the evidence would not support a verdict against

him on the charge of kidnapping in the second degree. ORS

136.445. We review the denial of an MJOA “in the light most

favorable to the state to determine whether a rational trier

of fact, making reasonable inferences, could have found the

essential elements of the crime proved beyond a reasonable

doubt.” State v. Hall, 327 Or 568, 570, 966 P2d 208 (1998).

If the evidence is sufficient to support the jury’s verdict

against defendant, then we are required to affirm it. Id.

1. The facts.

The events giving rise to the kidnapping charge

occurred early in the morning on a day in December 2016

or January 2017. Defendant approached J in the master

bedroom of their home. Given that it was winter in cen-

tral Oregon with an outdoor temperature of 20 degrees

Cite as 329 Or App 754 (2023) 757

Fahrenheit, we think it reasonable to infer that the home

was heated. J was lying on her side of the bed in her bath-

robe and underwear and was either under the bedsheets or

sitting on top of them. Defendant ordered J to “[g]et out of

the room.” When J did not comply, defendant grabbed her by

the hood of her robe and pulled her off of the bed and onto

the floor.

Defendant dragged J, on her back, by the hood of her

robe, approximately 50 linear feet: across the bedroom and

then through the bedroom door, down the hallway, through

the foyer, over the door jamb and out the front door of the

house, down wooden stairs, and into the front yard where

he yanked her robe from her body and left her alone in the

yard, exposed to the elements, in the snow and ice that had

accumulated in the yard. After removing J’s robe, defendant

went back inside the house, locked the door, and then physi-

cally held the door closed.

After a few minutes, J remembered that her car

was unlocked and that there was a garage door opener in

it. She was, therefore, able to enter the garage and regain

access to the house from there.

2. The kidnapping statute.

The state charged defendant with kidnapping in

the second degree under ORS 163.225(1)(a), which provides:

“(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[.]”

To establish the charged crime the state was, thus, required

to prove three elements beyond a reasonable doubt:

1. That defendant took J from one place to another

(the asportation element),

2. Without J’s consent, and

3. With the intent to interfere substantially with

J’s personal liberty (the intent element).

758 State v. Anderson

Because the state charged the kidnapping offense as involv-

ing domestic violence, it was also required to prove domestic

violence as an element of the offense. ORS 132.586(2).1

Defendant argues that the state’s evidence fell

short on both the intent element and the asportation ele-

ment. As to the intent element, he contends that “there

was no evidence that would allow the jury to find that he

intended either to move [J] a substantial distance or to con-

fine her for a substantial period of time[.]” As for the aspor-

tation element, he claims that “the evidence did not estab-

lish movement to a qualitatively different place or that th[e]

movement was not merely incidental to the commission of

another offense.” We take the elements in turn, beginning

with the asportation element, because defendant’s intent is

relevant only if the evidence supports that he took J from

one place to another.

3. The asportation element.

We determine whether there was sufficient evidence

for the jury to conclude beyond a reasonable doubt that

defendant took J “from one place to another” by considering

the distance that he moved her, and whether that movement

operated to limit J’s personal liberty and to increase her iso-

lation. State v. Walch, 346 Or 463, 475, 213 P3d 1201 (2009).

There is no threshold distance beyond which defendant was

required to move J to qualify that movement as “asporta-

tion” under the kidnapping statute. Indeed, “relatively mini-

mal movement” can satisfy the statutory requirement. State

v. Gerlach, 255 Or App 614, 618, 300 P3d 193, rev den, 353

Or 787 (2013). That is because the essence of kidnapping by

asportation is not in the distance traveled, it is in the change

of place as a means of limiting the victim’s ability to move

freely about. We, thus, consider distance taking into account

“the position of the victim such that, as a matter of situation

and context, the victim’s ending place is qualitatively differ-

ent from the victim’s starting place.” State v. Sierra, 349 Or

1

ORS 132.586(2) provides:

“When a crime involves domestic violence, the accusatory instrument may

plead, and the prosecution may prove at trial, domestic violence as an ele-

ment of the crime. When a crime is so pleaded, the words ‘constituting domes-

tic violence’ may be added to the title of the crime.”

Cite as 329 Or App 754 (2023) 759

506, 513, 254 P3d 149 (2010), aff’d as modified, 349 Or 604,

247 P3d 759 (2011).

Defendant does not dispute that he moved J approx-

imately 50 feet, from beginning to end. But, in his view, by

moving J from a place inside the house to a place outside the

house he committed “the opposite” of kidnapping. Exactly

what he would call it is unclear, but he would not call it

kidnapping because by moving J out of the house, he “left

her no more isolated than when she was inside.” The dissent

goes further and asserts that “locking someone out (rather

than in) is the opposite of confining them.” 329 Or App at

777 (Aoyagi, J., dissenting). We disagree.

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. It could reasonably conclude that the

place from which defendant moved J and the place to which

he moved her were qualitatively different places.

4. The intent element.

Intent is an element of kidnapping distinct from the

element of asportation. The state was, thus, required to prove

beyond reasonable doubt that when defendant moved J from

one place to another, he did so with the “intent to interfere

substantially with [her] personal liberty[.]” ORS 163.225(1).

“[T]he liberty interest that the statute protects from inter-

ference is the interest in freedom of movement * * *.” State

v. Wolleat, 338 Or 469, 475, 111 P3d 1131 (2005). “[I]n most

cases the question whether the defendant intended to inter-

fere substantially with the victim’s liberty will present a

question of fact for the jury.” Id. at 478. Wolleat instructs

us that the defendant must intend that the interference be

something more than movement that is merely incidental

to another crime, and that the 15 to 20 feet of actual move-

ment under the circumstances present in that case was not

760 State v. Anderson

sufficient to allow an inference that the defendant intended

to move the victim a substantial distance. Id. at 475.

Unlike Wolleat, the record here supports that when

defendant moved J from her bed to the front yard, he did so on

purpose, not as an unintended consequence of an assault that

became mobile. The dissent argues that defendant simply

“remov[ed] and exclude[ed]” J from her house—in other words,

that he intended to kick her out—and not that he intended to

kidnap her. 329 Or App at 777-78 (Aoyagi, J., dissenting). But

isolation, control, and distance—like kidnapping—are not

two-dimensional concepts. The dissent focuses on distance as

a linear measurement of physical space between two points.

But distance is more complex than that. The kidnapping stat-

ute requires the state to prove that defendant moved J from

one place to another with the “intent to interfere substantially

with [her] personal liberty.” ORS 163.225(1)(a). Importantly,

the word “distance” is not in the kidnapping statute. Evidence

of distance—and of confinement—is certainly relevant to

whether a defendant interfered with a victim’s personal lib-

erty, but we are aware of no authority that limits evidence

of intent to those things. Evidence of dragging someone 50

feet, without more, is very different than evidence of dragging

someone 50 feet from a warm bed into an icy yard and leaving

them there unclothed in 20-degree weather, and then lock-

ing them out. The essential question is not how many inches,

feet, or miles defendant intended to move J. The question is

whether defendant intended to substantially interfere with J’s

personal liberty. The distance that he planned to move J, and

the distance that he actually moved her, are relevant to his

intent, but not dispositive.

It is true that defendant moved J out of the house

rather than into it, but the surrounding circumstances sup-

port that in doing so he continued to exert control over J’s

personal liberty and that he did so by design. It is, in fact,

those circumstances that support the conclusion that defen-

dant intended to substantially interfere with J’s personal

liberty by moving her out of the house and into below-freez-

ing weather, with no clothing beyond her underwear, and

locking the door behind her. Defendant left J in a situation

where just asking for help would be (1) humiliating, because

Cite as 329 Or App 754 (2023) 761

she was virtually naked, and (2) difficult, given the extreme

weather conditions and her lack of shoes and clothing. Those

circumstances made J’s exclusion from the house more con-

fining than if she were inside the house, and they support the

reasonable inference that that is what defendant intended.

Given that the evidence supports that reasonable inference,

we are not at liberty to disturb the jury’s verdict.

B. The Second, Third, and Fourth Assignments:

Instructional Error

We turn to defendant’s second, third, and fourth

assignments, all of which concern defendant’s specially

requested jury instruction on the intent element of kidnap-

ping in the second degree. Defendant requested that instruc-

tion at three different points in the trial: after the state’s

objection to defendant’s closing argument, after the state’s

rebuttal argument, and in conjunction with an answer to

a jury question about the intent element of kidnapping.

Defendant assigns error to the trial court’s denial of each of

those requests.

We review “a trial court’s refusal to give a requested

jury instruction for errors of law” keeping in mind that “[a]

criminal defendant is entitled to have the jury instructed in

accordance with his or her theory of the case if the instruc-

tion correctly states the law and there is evidence to support

giving it.” State v. McNally, 361 Or 314, 320, 392 P3d 721

(2017). A trial court has the obligation to “state to the jury

all matters of law necessary for its information in giving its

verdict. ORCP 59 B; ORS 136.330 (extending ORCP 59 B to

criminal trials). However, a trial court may refuse a request

for an instruction when its substance is covered fully by

other jury instructions given or when the instruction is not

necessary * * * to explain the particular issue or point of law

to the jury.” State v. Haws, 297 Or App 812, 818, 444 P3d

1125 (2019) (internal citations omitted).

Defendant’s requested jury instruction states:

“For purposes of Kidnapping in the Second Degree, Oregon

law provides that a person has the intent to interfere sub-

stantially with another person’s liberty if the person acts

with the intent to move the other person a substantial

762 State v. Anderson

distance or to confine the other person for a substantial

period of time.”

(Emphasis added.) Defendant initially requested that

instruction when the parties discussed jury instructions,

but the trial court rejected it as “somewhat misleading.”

Defendant again requested the instruction after the state

objected to the mention of “substantial distance” by his law-

yer in closing argument. Defendant requested the instruc-

tion a third time after the state made this argument on

rebuttal:

“[E]arly on in [defense counsel’s] argument, he mentioned a

substantial distance, and you saw me jump up. I assume he

misspoke, and the Court correctly said look to your instruc-

tions that are written there. And you will see it is substan-

tial interference. It’s not a substantial distance. There’s no

requirement that [defendant] move [J] * * * a substantial

distance.

“And so, I assume that [defense counsel] misspoke on

that. But there is a requirement that there’ll be—that

there be substantial interference, and that’s where I think

the confusion was.

“* * * * *

“Plus, the issue in the kidnapping case is did [defen-

dant] substantially interfere with [J’s] liberty. Did he? The

defense is saying he didn’t. The defense is saying, ‘No, he

didn’t.’ The defense is saying it’s not an interference—a

substantial interference of your liberty to be in your bed, in

your underwear, in your home, and have somebody berating

and screaming at you and yank you violently out of the bed,

grab the hood of your robe, drag you out of the bedroom,

through the door, down the hallway, through the foyer,

opening the door over the door jamb outside—and yanks

you over the door jamb, outside, onto the front porch, into

ten feet across the front porch, down the stairs, five feet

into the front yard, onto the snow and the ice, deposit your

body there, yank your robe off, leave you in your underwear

in 20 degrees, close the door that’s locked. * * *.

“Is that substantial interference or not? And you’re the

jury, and your job is to decide that. The State wouldn’t have

presented it to you if we didn’t think it was. And you have

to decide that.”

Cite as 329 Or App 754 (2023) 763

Defendant argued that the instruction was even more

important after that rebuttal argument because the state

implied that defense counsel “got the law wrong.” And then

during deliberation, the jury asked the court for “a better

definition of personal liberty” in the context of whether

defendant had the intent to interfere substantially with J’s

personal liberty. Defendant once again requested, unsuc-

cessfully, that his jury instruction be given.

Second-degree kidnapping “has two elements—a

physical act and a mental state.” Wolleat, 338 Or at 473.

Taking the victim from “one place to another” is the phys-

ical act. ORS 163.225(1)(a). The statute “does not require

that a defendant take a victim a specific distance, nor does

it require that the distance be substantial.” Wolleat, 338

Or at 473. Intent to “interfere substantially with anoth-

er’s personal liberty” is the mental state required by ORS

163.225(1). The statute, thus, requires proof that the “per-

petrator have the ‘intent to interfere substantially’ with the

victim’s personal liberty to make the malefactor guilty of

kidnapping * * *.” Walch, 346 Or at 472 (emphasis in origi-

nal). As the Supreme Court explained,

“The drafters’ wording of the intent element in ORS

163.225(1) makes it apparent that it was through that ele-

ment that they sought to avoid an over-inclusive definition

of second-degree kidnapping. As noted, the only place that

the drafters used the word ‘substantially’ is in describing

the extent of interference with the victim’s liberty that the

defendant must ‘inten[d].’ And that is where this court has

most frequently referred to a ‘substantial distance’ require-

ment. That is, for a defendant to act with intent to inter-

fere ‘substantially’ with another’s personal liberty, that

defendant need not move the victim a substantial distance

or confine the victim for a substantial period of time, but

rather ‘must intend either to move the victim a substantial

distance or to confine the victim for a substantial period of

time.’ ”

Id. at 473 (emphases in original; citations omitted).

Defendant’s requested instruction correctly states the law

with respect to the intent element of second-degree kid-

napping. We understand the trial court’s reference to the

requested special instruction as “somewhat misleading”

764 State v. Anderson

as a reference to the fact that the word “distance” does not

appear in the second-degree kidnapping statute and that,

although defendant must have intended to move J a sub-

stantial distance, his success in doing so is not required

and his failure in doing so would not be dispositive. What

is required is that defendant “intended to interfere substan-

tially with [J]’s personal liberty, including her freedom of

movement[.]” State v. Worth, 274 Or App 1, 11-12, 360 P3d

536 (2015), rev den, 359 Or 667 (2016) (internal citations,

quotations marks, and brackets omitted). Given that the

trial court’s instructions correctly stated the law on both

elements of second-degree kidnapping and given the very

real potential for misleading the jury to think that a partic-

ular distance is required for either the physical act or men-

tal state elements, the court did not err in declining to give

defendant’s special instruction.

C. The Seventh Assignment: Disproportionate Sentence

Defendant contends that the trial court erred when

it sentenced him to a 70-month mandatory minimum prison

sentence on the second-degree kidnapping charge because

the sentence was unconstitutionally disproportionate to

the conduct for which he was convicted on that charge. We

review state and federal constitutional questions of sentence

proportionality for legal error. State v. Rodriguez/Buck, 347

Or 46, 56-57, 217 P3d 659 (2009).

The Oregon Supreme Court has held that when

applying Article I, section 16, of the Oregon constitution, “[i]

n order to justify the court in declaring punishment cruel

and unusual with reference to its duration, the punish-

ment must be so proportioned to the offense committed as

to shock the moral sense of all reasonable men as to what is

right and proper under the circumstances.” Sustar v. County

Court for Marion Co., 101 Or 657, 665, 201 P 445 (1921). The

Supreme Court later clarified that the standard it articu-

lated in Sustar would result in a finding of disproportion-

ality between the punishment and offense “only in rare

circumstances.” State v. Wheeler, 343 Or 652, 670, 175 P3d

438 (2007). It further clarified that its role is not “to second-

guess the legislature’s determination of the penalty or range

of penalties for a crime. However, it is the role of the court

Cite as 329 Or App 754 (2023) 765

to ensure that sentences conform to requirements that have

been in our constitution for 150 years.” Rodriguez/Buck, 347

Or at 58. In determining whether a penalty is so dispropor-

tionate as to “shock the moral sense” of reasonable people,

we consider three factors: “(1) a comparison of the severity of

the penalty and the gravity of the crime; (2) a comparison of

the penalties imposed for other, related crimes; and (3) the

criminal history of the defendant.” Id.

Defendant argues that second-degree kidnapping

covers a broad range of conduct including aggravating fac-

tors that are not present in this case, such as holding a vic-

tim captive for many hours or days, using or threatening to

use weapons, death threats, robberies or sex crimes commit-

ted in the course of kidnapping, or serious physical injury

to the victim. Defendant also presented information to the

trial court, and now on appeal, of “typical” second-degree

kidnapping cases in Oregon that included those aggravat-

ing factors. The trial court reviewed that information and

found that:

“[i]f anything, the supporting spreadsheets to the defense’s

sentencing memoranda indicate that [J]’s harm is exactly

within the range that—of harm that is typical for a

Kidnapping in the Second-Degree.

“* * * * *

“So, the extent of the depravation of that liberty is con-

sistent and is within the range of the depravations that

victims of this offense have typically experienced, based on

the small, select sample that was provided to the Court by

the defense[.]

“* * * * *

“It is the typical, if not slightly more than typical nature

and type of harm experienced and contemplated by the

statute.”

In reference specifically to whether this sentence

would “shock the moral sense of any reasonable person,”

the trial court noted that if defendant’s conduct had been

directed to a stranger, rather than his wife, it doubted there

would be any discussion about whether the sentence was

disproportionate. The court specifically disagreed with the

766 State v. Anderson

“unspoken * * * argument that, somehow, it’s different if it’s

your husband, or somehow it’s different if it’s your wife, or

somehow it doesn’t matter that this was also [J]’s home too,

and she had a right to not be forcibly dragged out of her bed

and out of her house.”

We find no error in the trial court’s analysis. While

there were no aggravating factors alleged or proven in this

case, the conduct engaged in by defendant was no less egre-

gious, and the harm suffered by J no less severe, than the

typical range of conduct and harm in second-degree kid-

napping cases generally. We do not agree with defendant’s

claim that reasonable people would “find it disproportion-

ate to impose the same or similar penalty for defendant’s

conduct as the penalty imposed on a person who commits”

other “Measure 11 offenses” such as second-degree assault

or second-degree robbery.2

We note, as the trial court did, that defendant had

no criminal history. However, the lack of criminal history

does not render the sentence unconstitutionally dispropor-

tionate to the crime committed. The trial court did not err

in finding that defendant’s conduct—dragging his wife on

her back, by the hood of her robe, almost 50 feet from where

she lay in their bed, through the house, down the stairs and

into the snow covered grass in 20-degree weather, wearing

only her underwear and a robe—was not “minimal.” The

70-month sentence does not “shock the moral sense.” We will

not second-guess the legislature’s decision to determine that

penalty for this crime. Defendant’s sentence was not consti-

tutionally disproportionate to the conduct for which he was

convicted on the second-degree kidnapping charge.

II. MENACING

Turning to defendant’s fifth assignment of error, we

review the court’s denial of an MJOA on the menacing count

by the same standard as we reviewed the kidnapping count.

2

We have recently acknowledged that “in an age in which long sentences like

those imposed under Measure 11 are coming under more scrutiny,” it is possible

for a sentence to “shock the moral sense of some” without rising to the standard

for disproportionality to “shock the moral sense of all reasonable people.” State

v. Le, 327 Or App 129, 141, 534 P3d 1097, rev den, 371 Or 715 (2023) (internal

brackets omitted).

Cite as 329 Or App 754 (2023) 767

In the incident giving rise to the menacing charge,

which occurred several months after the kidnapping inci-

dent, J told defendant that she wanted to leave their home

for a few days “so they could have some space.” Defendant

became angry and, while J stood next to her car on the driv-

er’s side, he drilled two holes into the tires on that side and

another hole into the car just above the wheel. He also threw

a Bluetooth speaker at the car, near to where J was stand-

ing, hard enough to leave a dent. Defendant told J that she

was “lucky” he threw the speaker at the car and not at her.

J remained outside the house for a while because she was

afraid of defendant. When she told defendant that she was

afraid he was going to kill her, he said: “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.”

ORS 163.190 defines menacing as follows:

“(1) 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 argues that his conduct was not directed

at J and only incidentally caused her to fear for her safety.

He argues that he did not approach J or brandish the drill at

her at any point during the incident, and that his statements

to J did not amount to threats of imminent serious physical

injury. But defendant drilled holes into J’s car and tires and

threw an object that left a dent in the car very near to where

J was standing, and he did so in direct response to J tell-

ing him that she was going to leave for a few days because

that statement angered him. A reasonable jury could cer-

tainly conclude on that evidence that defendant drilled holes

into J’s car and threw a speaker at it, as J stood there, to

cause her to fear for her own immediate safety. Defendant

menaced J by his conduct. It is no different than defendant

punching a hole into the wall immediately next to J in an

attempt to cause her to fear that she is next. That is the

essence of menacing, and a rational jury could so conclude

beyond a reasonable doubt.

The verbal statements simply provide additional

evidence of menacing. To be sure, “empty threats to inflict

serious injury” do not constitute menacing. State v. C. S.,

768 State v. Anderson

275 Or App 126, 130, 365 P3d 535 (2015). “The threatened

harm must be imminent and serious.” State v. Garcias, 296

Or 688, 699, 679 P2d 1354 (1984). Speech constitutes men-

acing only when “the threatened injury is ‘near at hand,’

‘impending,’ or ‘menacingly near,’ ” otherwise the communi-

cation is constitutionally protected speech. State ex rel Juv.

Dept. v. Dompeling, 171 Or App 692, 695, 17 P3d 535 (2000).

But defendant did not menace J with words. He menaced

J as he drilled holes into, and threw a speaker at, the car.

His words amplified his conduct and, together, they com-

prise the totality of the circumstances to consider to deter-

mine whether there was sufficient evidence for a jury to

find that defendant menaced J. See, e.g., State v. Hejazi, 323

Or App 752, 758, 524 P3d 534 (2023) (menacing conviction

reversed where the defendant’s verbal threat followed by his

quick physical retreat did not amount to menacing); State v.

Severson, 325 Or App 550, 559, 529 P3d 302, rev den, 371 Or

332 (2023) (menacing conviction affirmed where there was

evidence that the defendant made threats within earshot of

the victim’s closed and locked bedroom door, shortly after

she accused the victim of molesting her son, while sounds of

a pounding hammer could be heard and the defendant made

threats involving a meat tenderizer).

Defendant’s comment that J was “lucky” he took

his anger out on her car rather than on her served only to

add to the sense of real and imminent danger already con-

veyed by defendant’s conduct. Much like in Severson, defen-

dant’s “behavior, paired with [his] statements,” 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. 325

Or App at 559. That is sufficient to support the menacing

conviction. The trial court did not err by denying the MJOA

on the menacing count.

III. THE STATE’S MOTION IN LIMINE

Finally, we address defendant’s sixth assignment

of error challenging the trial court’s “granting the state’s

motion in limine to prevent defendant from arguing that

[J] alleged defendant abused her in order to gain a tactical

advantage in the parties’ dissolution.” The state responds

Cite as 329 Or App 754 (2023) 769

that defendant made no offer of proof on that aspect of the

court’s ruling and that, therefore, he has no basis for appeal.

Defendant replies that “an offer of proof was not required

because [he] was not proposing to elicit direct evidence that

[J] made the allegations of abuse in order to obtain a tactical

advantage in the dissolution case.” Rather, it was his intent

to argue that the jury should infer that J lied “from the con-

text of J’s allegations.” For reasons that follow, we conclude

that the trial court did not err in its ruling, and we reject

this assignment of error.

We review the ruling on a motion in limine in light

of the record that the trial court had before it when it ruled

on the motion. Bank of New York Mellon v. Owen, 299 Or App

348, 349, 450 P3d 1009 (2019). Whether evidence is suffi-

cient to permit a juror to infer bias or interest of a witness

is reviewed for errors of law. State v. Hubbard, 297 Or 789,

800, 688 P2d 1311 (1984).

We begin with these basic principles:

a. There is no legal error when a court excludes evidence

“unless a substantial right of a party is affected, and * * *

the substance of the evidence was made known to the court

by offer or was apparent from the context within which

questions were asked.” OEC 103(1)(b).

b. A trial judge has discretion pursuant to OEC 403 to

exclude evidence relevant to bias or interest “once sufficient

facts have been established from which the jury may infer

that bias or interest,” or when the bias or interest “is appar-

ent from the circumstances of the trial.” Hubbard, 297 Or

at 798.

c. In evaluating a trial court’s discretionary ruling under

OEC 403, our role is to assess whether the court’s decision

falls within the range of legally permissible choices. State

v. Gibson, 299 Or App 582, 588-89, 451 P3d 259 (2019),

rev den, 366 Or 691 (2020).

d. Although motions in limine were once disfavored,

Nielsen v. Brown, 232 Or 426, 430, 374 P2d 896 (1962), they

are now regarded as an appropriate vehicle “to obtain guid-

ance on how to conduct voir dire and opening statements

and, more importantly, to prevent the jury from hearing

a trial scenario” that they should not hear, and for which,

770 State v. Anderson

once heard, there is no adequate way to remedy that they

have heard it. State v. Foster, 296 Or 174, 183, 674 P2d 587

(1983).

Reviewing the state’s motion with those principles

in mind, we note first that the state filed the motion after

defendant notified it that he intended to argue a defense

theory that J “fabricated the allegations contained in the

indictment to gain an advantage in the divorce proceedings.”

The state argued that there was no evidence that would

support such a defense theory, but it sought an anticipatory

order excluding any “evidence and argument regarding * * *

the divorce proceeding.” It acknowledged that it would be

“fair game” for defendant to ask J “if she thought she would

gain an advantage in the divorce by fabricating her allega-

tions against [defendant]” and did not seek to prohibit defen-

dant from asking that question. The state’s objection was to

defendant suggesting to the jury, through his questioning of

J, that she was motivated to make false claims of criminal

conduct against defendant because she would gain a tacti-

cal advantage in the divorce case by making such claims.

We understand the state’s concern to have been that, in the

absence of evidence that J would, in fact, receive an advan-

tage in the dissolution proceeding by virtue of pending crim-

inal allegations against defendant, defendant should not be

permitted to suggest through the language of his lawyer’s

questions that she would be so advantaged.

There was a lengthy hearing on the motion, although

no witnesses were called, and no offers of proof were made.

The trial court ruled from the bench as follows:

“All right. Well, I’m going to address some of the spe-

cifics of what I’m hearing from defense in terms of poten-

tial bias, interest, motive evidence or examination defense

wants to conduct.

“* * * * *

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

terms of, you know, trying to establish or elicit testimony

from the victim about her potential motive or bias or inter-

est 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

Cite as 329 Or App 754 (2023) 771

or OLCC licensing agreements 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.

“So, you can ask about her attempt to resist subpoe-

nas and enlisting the District Attorney’s Office to assist

her with that. You can ask her about any reports she made

about release violations or law violations or administrative

violations.

“And, you know, it should go without saying, but the

State will also have the opportunity to address that on

redirect with her so she can, you know, fully explain those

circumstances if she chooses to.

“But suggesting that these things would have given a

tactical advantage in the dissolution, I think, is generally

inaccurate. But it also does lead to a lot of simply—you

know, frankly, complicated and unrelated and irrelevant

matters in the dissolution.

“* * * * *

“I’m not aware of any sort of case law suggesting that

criminal conduct unrelated to the dissolution action is a

circumstance that the Court can consider in making a just

and proper distribution of property.

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

prejudicial to suggest that not only did her 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.

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

with 403, because that does mislead the jury into thinking

that it would allow her some sort of tactical advantage.

“* * * * *

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

Defense may question victim about the reasons for her flee-

ing or leaving the area and whether or not outstanding

payroll taxes that were owed were any factor in that.

“* * * * *

772 State v. Anderson

“Defense may question victim about whether or not she

attempted to seek the assistance of the District Attorney’s

Office or any of their personnel in resisting subpoenas that

may have been issued in her domestic relations case.

“Defense may question victim about whether she made

any reports to law enforcement agencies, regulatory agen-

cies, 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 consequence for [defendant].

“Defense may question victim about the timing of her

report to law enforcement about the facts and circum-

stances that comprise the current indictment. Defense may

not ask the victim or any other witness about the timing of

the grand jury presentment.

“Defense may not ask questions or otherwise argue that

the victim/complainant, 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.

“* * * * *

“So, unless and until I hear something further and more

specific about why and how the domestic relations case

should be drawn into this and how any sort of testimony or

evidence, 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.

“So, I’m basing my decision based on the arguments of

counsel, their briefing and, you know, what they’ve provided

to me today in terms of the areas of evidence or inquiry

that they expect during the trial. That’s the Court’s ruling

on motion number one.”

The court’s thoughtful ruling was as detailed and clear as

the record permitted. The court did not exclude any evidence.

At most, it prohibited defendant from making an argument

that was not supported by evidence. The court also left the

question open to reconsideration should it “hear further and

more specific” evidence “about why and how the domestic

relations case should be drawn into this” criminal case.

OEC 609-1 provides that “[t]he credibility of a wit-

ness may be attacked by evidence that the witness engaged

Cite as 329 Or App 754 (2023) 773

in conduct or made statements showing bias or interest.”

That evidentiary principle applies to evidence. No offer of

proof was made in response to the state’s motion in limine.

Defendant did not offer evidence that J stood to benefit in

the divorce case from false accusations of criminal conduct

against him in this case. He did not make an offer of proof

that J would testify that she thought that she would benefit

in the divorce case from false accusations of criminal con-

duct against him in this case. On that record, the trial court

did not err.

Affirmed.

AOYAGI, J., dissenting.

Defendant was convicted of one count of second-

degree kidnapping and one count of menacing, based on

two separate incidents several months apart.1 I disagree

with the majority that the charged conduct qualifies as

kidnapping and menacing as the legislature has defined

those crimes. It is important to clearly and accurately delin-

eate the boundaries of those crimes, as they are frequently

charged offenses, and kidnapping is a particularly serious

offense that the legislature sought to narrow through the

current kidnapping statute. In this case, I would reverse

both convictions because the evidence was legally insuffi-

cient to prove the charged crimes. Accordingly, I dissent.

KIDNAPPING

Second-degree kidnapping may be committed by

asportation (“[t]ak[ing] the person from one place to another”)

or confinement (“[s]ecretly confin[ing] the person in a place

where the person is not likely to be found”). ORS 163.225(1).

Defendant was convicted of kidnapping by asportation. That

crime occurs when a person, “with intent to interfere sub-

stantially with another’s personal liberty, and without con-

sent or legal authority, * * * [t]akes the person from one place

to another[.]” ORS 163.225(1)(a).

Asportation is the conduct element of the crime. The

state must prove that the defendant moved the victim “from

1

Defendant was also charged in connection with two other alleged incidents,

but he was acquitted on those charges.

774 State v. Anderson

one place to another” within the meaning of the kidnapping

statute. ORS 163.225(1). A defendant moves a victim “from

‘one place’ to ‘another’ only when 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 starting place.” State v. Sierra, 349 Or 506,

513, 254 P3d 149 (2010).

It is not entirely settled what “quality” renders a

place “qualitatively different” from another place. Past case

law has focused on the qualities of isolation and ease of con-

trol. In State v. Walch, 346 Or 463, 475, 213 P3d 1201 (2009),

the court explained that a person who is moved a substan-

tial distance is “more likely” to end up in “another” place,

but that “another important factor in determining whether

the defendant moved the victim ‘from one place to another’ is

whether the movement served to limit the victim’s freedom

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

defendant moving the victim from her open-air driveway into

his car trunk satisfied the asportation element, even though

the distance was short. Id. at 482. In State v. Washington,

266 Or App 133, 139-41, 337 P3d 859 (2014), rev den, 356 Or

767 (2015), we relied on Walch in holding that asportation

could be proved by evidence that the defendant forced the

victim from the open doorway of her home, “where she might

have been seen by neighbors,” upstairs “to a more isolated

place at the top of the stairs,” which movement “served to

limit her freedom and increase her isolation.” But see also

Sierra, 349 Or at 516 (emphasizing that, while it may be

relevant that a particular movement “increases defendant’s

control over the victim, or isolates the victim from the view

of others,” those considerations “cannot be substituted for

the ultimate inquiry whether the victim was moved from

one place to another”).

Turning to intent, the “intent to interfere substan-

tially with another’s personal liberty” is the intent element

of the crime. ORS 163.225(1). Any act of forcefully moving or

restraining a person against their will would seem to “inter-

fere” with a person’s liberty. However, it is well-established

by case law what “substantial” interference requires: “[T]he

liberty interest that [ORS 163.225(1)] protects from

Cite as 329 Or App 754 (2023) 775

interference is the interest in freedom of movement,” and

“for the interference to be substantial, a defendant must

intend either to move the victim a ‘substantial distance’ or

to confine the victim for a ‘substantial period of time.’ ” State

v. Wolleat, 338 Or 469, 475, 111 P3d 1131 (2005) (emphasis

added); see also, e.g., Walch, 346 Or at 473 (same); State v.

Nguyen, 221 Or App 440, 445, 190 P3d 462 (2008), adh’d to

as modified on recons, 228 Or App 241, 206 P3d 1219 (2009),

rev den, 348 Or 669 (2010) (same). The defendant need not

succeed in moving the victim a substantial distance or con-

fining the victim for a substantial period of time, but the

defendant must intend to do one or both of those things to

commit the crime of kidnapping. Walch, 346 Or at 473.

Importantly, the intent necessary to “kidnap” a

person is “separate” and “apart” from the intent to assault,

menace, bully, or harass them. State v. Mejia, 348 Or 1, 10,

12, 227 P3d 1139 (2010) (describing issue as whether a rea-

sonable trier of fact could “find that, apart from his various

assaultive and menacing acts, defendant intended to inter-

fere substantially with the victim’s personal liberty” and

recognizing the need for evidence of a “separate intent to

keep the victim in her apartment and hold her captive”); see

also, e.g., Walch, 346 Or at 482 (noting that “the legislature

took pains to enact a kidnapping statute that would limit

‘the separate crime of kidnapping’ to situations ‘where the

detention or asportation is not merely incidental to the com-

mission of the underlying crime’ ” (quoting State v. Garcia,

288 Or 413, 420, 605 P2d 671 (1980) (emphasis in original));

State v. Arreola, 282 Or App 555, 560-61, 386 P3d 214 (2016)

(holding that the evidence was insufficient to prove the

intent element of kidnapping, where the defendant confined

the victim, NS, in a garage for 15 minutes to “scare her,”

but “that confinement was incidental to the assault” that

took place in the garage, and there was no evidence that

he “intended to confine NS to the garage for a substantial

period of time”).

In this case, defendant disputes the sufficiency of

the evidence as to both the asportation element and the

intent element of second-degree kidnapping. The majori-

ty’s asportation and intent analyses significantly overlap.

776 State v. Anderson

See 329 Or App at 758-61. That is understandable, insofar

as it is undisputed that defendant intended to do exactly

what he did: get J out of the house by dragging her a little

less than 50 feet from the bedroom to the front yard and

then locking the front door.2 However, the intent element of

kidnapping is legally distinct from the asportation element.

It is the intent element that interposes the requirement of

substantial interference. Indeed, the intent element in the

current kidnapping statute was written as it was precisely

to narrow the statute’s application, in response to concerns

about the overcharging of kidnapping. See generally Mejia,

348 Or at 7-9 (discussing history of current statute); Walch,

346 Or at 469-74 (same); Garcia, 288 Or at 416-21 (same).

I therefore focus on the intent element. That is, I

assume for present purposes that the inside of the house and

the outside of the house were qualitatively different places,

notwithstanding the fact that defendant actually had less

control over J outside.3 See State v. Murray, 340 Or 599, 603,

606, 136 P3d 10 (2006) (recognizing the questions of “meta-

physics” that the term “place” raises); see also Walch, 346

Or at 482 (disagreeing with one statement in Murray but

adhering to its holding that determination of what consti-

tutes movement from one place to another is “situational

and contextual”).

To prove that defendant intended to substantially

interfere with J’s liberty—separate and apart from an intent

to assault, harass, or bully her—the state had to prove that

defendant “intend[ed] either to move [J] a ‘substantial dis-

tance’ or to confine [J] for a ‘substantial period of time.’ ”

Wolleat, 338 Or at 475. Although the Supreme Court has

alluded to the “possibility” of there being some other way

to “substantially interfere” with a person’s liberty, Mejia,

348 Or at 11-12, neither it nor we have ever identified any

2

The only potential difference between what defendant intended and what

he accomplished is that defendant may not have anticipated J getting back into

the house through the garage door. Like the majority, I do not consider in my

analysis the fact that J found a way back into the house after five to 10 minutes.

3

The only observation that I will make regarding the asportation element

is that, to the extent the majority suggests that whether J was kidnapped might

depend on the weather or her attire, I find that approach difficult to reconcile

with the statute.

Cite as 329 Or App 754 (2023) 777

other way, nor do I understand the state to be asking us to

announce a new way in this case.

It is undisputed that defendant did not intend to

“confine” J at all; indeed, locking someone out (rather than

in) is the opposite of confining them. It is also undisputed

that defendant did not intend to move J any greater dis-

tance than he did. Thus, in the end, what the state had to

prove was that defendant intended to move J a substantial

distance, and the key legal question is whether a little less

than 50 feet is a substantial distance to intend to move

someone.

I do not believe it is, nor do I believe that the Supreme

Court would conclude that it is. There is no precedent for

treating 50 feet, or anything similar, as a “substantial dis-

tance” for kidnapping purposes. If defendant had moved J a

short distance—such as 50 feet—to “another place” that was

more isolated or confined, and the circumstances allowed a

reasonable inference that he intended to confine her there

for a substantial period of time, that would be sufficient to

prove kidnapping by asportation. See, e.g., State v. Worth,

274 Or App 1, 12-13, 360 P3d 536 (2015), rev den, 359 Or 667

(2016) (stating, in a case where the defendant “moved the vic-

tim from a place where she could have more easily escaped

or summoned help to a more secluded location,” that “proof

that a defendant physically restrained the victim, thwarted

escape attempts, sought to minimize the risk of discovery,

or moved the victim to a place that would better facilitate

the defendant’s control over the victim” may be probative

of the requisite intent for kidnapping). But that is not this

case. There has never been a confinement issue in this case.

What the state had to prove in this case was that defendant

intended to move J a substantial distance.

This case is similar to Wolleat. There, the defendant

“dragged the victim from one room to another during the

course of an assault.” 338 Or at 471. Specifically, he pulled

her out of bed and dragged her by her hair from the bed-

room to the living room, a distance of approximately 15 to

20 feet. Id. The Supreme Court held that the evidence was

insufficient to prove the intent element of second-degree kid-

napping, because there was no evidence that the defendant

778 State v. Anderson

“intended either to move the victim a greater distance than

he did or to transport her to a place of confinement.” Id. at

478. The court thus implicitly ruled that 15 to 20 feet is not

a “substantial distance.” Similarly, here, defendant pulled J

out of bed and dragged her by her hair from the bedroom to

the front yard, a distance of 50 feet, in the course of assault-

ing or harassing her. There is no evidence that defendant

intended to move her a greater distance or transport her to

a place of confinement. If 15 to 20 feet is not a “substantial

distance” to intend to move someone, neither is a little less

than 50 feet.

Thus, to summarize, it is undisputed that defendant

did not intend to confine J at all, let alone for a substantial

period of time, and the only evidence regarding his intent to

move her is that he intended to move her a little less than

50 feet, which is not a substantial distance. In the absence of

evidence that defendant “intend[ed] either to move [J] a ‘sub-

stantial distance’ or to confine [J] for a ‘substantial period

of time,’ ” Wolleat, 338 Or at 475, the only possible way that

defendant could be convicted of kidnapping in this case is if

the court is announcing a new, third way to substantially

interfere with someone’s liberty: by removing and excluding

them from a place that they want to be. In my view, such an

approach would be inconsistent with the legislative intent.

No matter how egregious defendant’s conduct was, it was

not second-degree kidnapping, as I understand the legisla-

ture to have defined that crime.

Having explained why I conclude that defendant

was entitled to a judgment of acquittal on the charge of

second-degree kidnapping, I will comment only briefly on

defendant’s second, third, and fourth assignments of error,

in which he challenges the trial court’s repeated refusal to

instruct the jury more completely on the intent element.

I agree with the majority that defendant’s requested

instruction correctly states the law on the intent element

of second-degree kidnapping. See 329 Or App at 763. I dis-

agree that the trial court did not have to give that instruc-

tion. See id. at 764. The jury was instructed that, to prove

kidnapping, the state had to prove that defendant “had the

intent to interfere substantially with [J’s] personal liberty.”

Cite as 329 Or App 754 (2023) 779

Defendant requested a legally accurate instruction on

the well-established meaning of “substantial” as used in

that phrase. In response, the prosecutor argued that the

requested instruction misstated the law—which it did not—

and the trial court declined to give it, stating, “I don’t believe

that that is an accurate statement of the law, or at least I

think it’s somewhat misleading * * *.” Then, during closing

argument, the prosecutor argued that defense counsel had

misstated the law in referring to “substantial distance” in

closing, and he told the jury that “personal liberty” means

a person’s “freedom of movement,” which in turn simply

means the “ability to move or not move.” Defendant again

requested the additional instruction, and the court again

said no. Finally, during jury deliberations, the jury asked

for a “better definition of ‘personal liberty’ ”—having heard

none except the prosecutor’s—and the court again rebuffed

defendant’s request, instead telling the jury only that “the

term ‘personal liberty’ refers to [J’s] right to freedom of

movement.”

The Supreme Court has acknowledged the inherent

“ambiguity” in the phrase “intent to interfere substantially

with another’s personal liberty’ ” in the kidnapping stat-

ute—and how that ambiguity has been resolved through

case law:

“The decision in Garcia[, 288 Or at 413] removes some of

the ambiguity from the phrase ‘intent to interfere substan-

tially with another’s personal liberty.’ It confirms that the

liberty interest that the statute protects from interference

is the interest in freedom of movement and concludes that,

in order for the interference to be substantial, a defendant

must intend either to move the victim a ‘substantial distance’

or to confine the victim for a ‘substantial period of time.’ ”

Wolleat, 338 Or at 475 (emphasis added). In short, it is the

“substantial” distance that the defendant intends to move

the victim, or the “substantial” period of time that he intends

to confine the victim, that makes the intended inference

“substantial.”

The legal meaning of “intent to interfere substan-

tially with another’s personal liberty’ ” was particularly

important to the defense theory in this case; the prosecutor

780 State v. Anderson

made misleading statements in closing argument regard-

ing the intent requirement for kidnapping; and the jury was

clearly unsure as to what the state needed to prove. The

requested instruction accurately stated Oregon law and

would have ensured that the jury understood its task. It

was not confusing or misleading. Under the circumstances,

the requested instruction should have been given. The court

erred each time that it refused to do so, and that error likely

affected the verdict. The instructional error is another rea-

son that I would reverse defendant’s kidnapping conviction

(although a reversal on that basis would only entitle defen-

dant to a new trial).

MENACING

Having explained why I would reverse the kidnap-

ping conviction, I next address the menacing conviction.

“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.”

ORS 163.190(1). “An ‘imminent’ threat is one that is ‘near

at hand,’ ‘impending,’ or ‘menacingly near.’ ” State v. Hejazi,

323 Or App 752, 757, 524 P3d 534 (2023) (quoting State ex rel

Juv. Dept. v. Dompeling, 171 Or App 692, 695, 17 P3d 535

(2000)). A non-imminent verbal threat is constitutionally

protected speech. State v. Severson, 325 Or App 550, 557, 529

P3d 302, rev den, 371 Or 332 (2023); see also State v. Moyle,

299 Or 691, 703, 705 P2d 740 (1985) (concluding that it is

constitutional to convict someone of harassment for “threats

which are so unambiguous, unequivocal and specific to the

addressee that they convincingly express to the addressee

the intention that they will be carried out”). Thus, to prove

menacing, the state had to prove that defendant threatened

J in a way that would cause an “objectively reasonable per-

son” to fear physical injury that was both “imminent” and

“serious.” State v. C. S., 275 Or App 126, 133, 365 P3d 535

(2015); see also State v. Garcias, 296 Or 688, 699, 679 P2d

1354 (1984) (“[T]he threatened harm must be imminent and

serious.”).

Dompeling and C. S. are illustrative as to the immi-

nency requirement. In Dompeling, 171 Or App at 694-96, we

Cite as 329 Or App 754 (2023) 781

held that the youth’s statements to her mother at 8:00 p.m.

one evening that “I could stab you right now” and that “I

thought about doing it while you were in your sleep” could be

found to threaten imminent serious physical injury, because

“the threat of being stabbed within the next few hours is

sufficiently near at hand to be imminent.” We reached the

opposite conclusion in C. S., where the youth told three

classmates that they were going to die and he was going to

kill them, including telling one classmate that she would

die in three days or else he would stab her with a pencil

until she died, and he also drew his finger across his neck

when passing them in school hallways. 275 Or App at 128-

29. Although an objectively reasonable person could fear

future harm, the youth’s threats did not imply harm that

was “moments away” or otherwise “imminent” enough to

constitute the crime of menacing. Id. at 133.

In this case, defendant became angry when J told

him that she wanted to leave home for a few days, drilled

several holes in J’s car tires and above the wheel well, threw

a speaker at the car hard enough to leave a dent, and told

J that she was lucky that he threw the speaker at the car

and not at her. Sometime later that night—it is unclear

how much later—J told defendant that “you can’t do this”

to people or their cars, that it was “not okay,” and that she

was “afraid he was going to kill [her] one day.” 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.”

The majority concludes that the act of drilling holes

in J’s tires and throwing a speaker at J’s car meets the stat-

utory definition of menacing. See 329 Or App at 767-69. I dis-

agree. Mere proximity to the use of force against an object

is not, in and of itself, enough to establish menacing. There

must be something about the circumstances that makes it

objectively reasonable for the person to fear imminent, seri-

ous physical injury to their person. ORS 163.190(1); C. S.,

275 Or App at 133. That evidence is lacking here. There is no

evidence that defendant used the drill or threw the speaker

in a manner that itself could have risked causing serious

physical injury to J. There is also no evidence, for example,

782 State v. Anderson

of defendant holding up another object to throw after telling

J that she was lucky he had not thrown the speaker at her,

which would bring this case closer to Severson, 325 Or App

550.

Finally, as for defendant’s statement later the same

night—when, in response to J expressing fear that he would

kill her “one day,” he described how he would dispose of her

body if he “was going to” kill her—it is entirely understand-

able and rational that J would be alarmed and frightened by

defendant’s behavior, leading up to and including that state-

ment. Indeed, within days, she left him and left the state.

But neither the “lucky” statement nor the later statement

meet the legal requirements for an imminent threat, even in

combination with defendant’s conduct in damaging J’s vehi-

cle.4 Any implied threat of future injury was not imminent,

i.e., “near at hand,” “impending,”’ or “ ‘menacingly near.”

Hejazi, 323 Or App at 757 (internal quotation marks omit-

ted). Because defendant’s conduct and words did not objec-

tively threaten imminent, serious physical injury to J, the

state failed to prove the elements of menacing.

In sum, I would reverse both of defendant’s con-

victions based on legally insufficient evidence.5 I therefore

respectfully dissent.

Tookey, J., joins in this dissent.

Pagán and Jacquot, JJ., join in this dissent as to

those portions addressing the motion for a judgment of

acquittal on the kidnapping charge and the jury instruc-

tions on the kidnapping charge.

Ortega, J., joins in this dissent as to the portion

addressing the jury instructions on the kidnapping charge.

4

When parties have a history of domestic violence, it is possible that one

party may feel at near-constant risk of imminent physical injury, because vio-

lence may occur so suddenly or unpredictably. But the menacing charge here was

based on a specific incident. Past domestic violence may be relevant context to a

threat, but, ultimately, the threat in context must still meet the legal standard.

On this record, the evidence was insufficient to prove menacing.

5

If we reversed defendant’s convictions, we would not reach the sixth or sev-

enth assignments of error—regarding a motion in limine and sentencing, respec-

tively—so I do not address those assignments.