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KIDNAPPING

Kidnapping is a very serious felony charge, and if you're convicted of this crime, you can be sentenced to prison for a long time. When people hear the term "kidnapping," they probably think of someone being forcefully taken and held against their will, usually for ransom. These people aren't wrong. Of course, taking and holding someone for ransom is kidnapping. However, Nevada's kidnapping law is much broader than this. Because kidnapping is so broadly defined by state law, many people arrested in Las Vegas are shocked to find, when they go to court, that the District Attorney is charging them with kidnapping. Read this article to learn about the legal definition of kidnapping, including first degree and second degree kidnapping, then familiarize yourself with the potential punishment a person faces if he gets convicted of kidnapping, and finally, find out how a criminal defense lawyer can help you fight a kidnapping charge.

KIDNAPPING DEFINED

NRS 200.310 is the law that defines kidnapping in Nevada. There are two degrees of kidnapping: First degree kidnapping and second degree kidnapping. First degree kidnapping is a more serious charge. Let's start with first degree kidnapping.

FIRST DEGREE KIDNAPPING

First degree kidnapping has a long definition that is difficult to read and understand. I usually try to summarize criminal statutes rather than reproducing them from the Nevada Revised Statutes. But to illustrate how complex Nevada's definition of first degree kidnapping is, below is the entire text of NRS 200.310. Skim it briefly and then read the full explanation below the quoted statute.

  • A person who willfully seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away a person by any means whatsoever with the intent to hold or detain, or who holds or detains, the person for ransom, or reward, or for the purpose of committing sexual assault, extortion or robbery upon or from the person, or for the purpose of killing the person or inflicting substantial bodily harm upon the person, or to exact from relatives, friends, or any other person any money or valuable thing for the return or disposition of the kidnapped person, and a person who leads, takes, entices, or carries away or detains any minor with the intent to keep, imprison, or confine the minor from his or her parents, guardians, or any other person having lawful custody of the minor, or with the intent to hold the minor to unlawful service, or perpetrate upon the person of the minor any unlawful act is guilty of kidnapping in the first degree…

If you think that definition looks confusing, you're not alone. I have written and re-written this article several times trying to explain all of the above statutory language in a way that is easy to understand for people charged with this crime. I have concluded that the statute can be written much more simply. Here is a simpler definition of first degree kidnapping that I have written based upon NRS 200.310 and Nevada case law:

  • A person is guilty of first degree kidnapping if he detains and moves or restrains another person through force or trickery for any of the following purposes: (1) to collect a ransom of money or other valuable property; (2) to commit sexual assault, extortion or robbery upon the kidnapping victim; or (3) to kill or inflict substantial bodily harm upon the kidnapping victim.

If you want to learn more about the definition of first degree kidnapping, read my analysis of the "elements" of first degree kidnapping that follows. Any criminal charge is made up of "elements." Elements are essential facts that define a particular crime. If an essential element is missing for a particular crime, then that crime hasn't been committed and the person accused is not guilty. Here is my take on the elements of first degree kidnapping.

Use of Force or Trickery

The first element pertains to the way in which the victim is kidnapped. Specifically, that first list of terms (seizes, confines, inveigles…") is talking about the way in which the kidnapper gets ahold of the kidnapping victim. Many of those terms are redundant: they mean the same thing. For instance, seize, abduct, and kidnap basically mean the same thing. They imply a taking by force. Other terms in that long list imply a taking by trickery. These include the terms "inveigle" and "decoy." So a kidnapping victim can be kidnapped through force or trickery.

Intent to Detain the Victim (or Actual Detention)

The next element pertains to the kidnapper's intent to detain the victim, but according to the statute, this element can also be met if the victim is actually detained. Specifically, the text says, "with the intent to hold or detain, or who holds or detains, the [kidnapping victim]." So we have two distinct situations. The kidnapper either uses force or trickery with the intent to detain the victim, or actually detains the victim.

Movement or Restraint of the Victim

Movement or restraint of the kidnapping victim is kind of a "hidden" element of first degree kidnapping. Nevada case law states that the victim must be moved for a kidnapping to occur. This element is implied from the language "kidnaps or carries away" but it would not necessarily be clear from reading the statutory language alone. The bottom line is that a person can't be kidnapped unless he is moved, to some degree, from one point to another. According to Nevada case law, the distance doesn't have to be great, but there must be some movement.

Purpose of Detention

The most important element of first degree kidnapping—because it separates first degree from second degree kidnapping—pertains to the purpose of the kidnapping (i.e., why the kidnapper detained the alleged victim). If you remove the redundant statutory language, first degree kidnapping applies to two distinct situations:

  • When the kidnapper detains the victim for ransom
  • When the kidnapper detains the victim to extort, sexually assault, rob, kill, or inflict substantial bodily harm on the victim.

In practical terms, first degree kidnapping pertains to one of several serious situations where the victim is actually held for ransom, or is held for the purpose of committing one of the above-listed serious felonies.

As I stated above, first degree kidnapping is a common charge in Las Vegas. So does this mean that there is a lot of kidnapping for ransom in Las Vegas? No. Most first degree kidnapping cases in Las Vegas involve an allegation that the victim was kidnapped with the purpose of committing substantial bodily harm or robbery. Here are two examples of common factual scenarios where the defendant is charged with first degree kidnapping by Las Vegas prosecutors:

  • In a domestic violence case, the defendant and the victim are driving around in a car. The man is driving. They argue. She wants to get out of the car. He locks the door and doesn't let her out. He threatens her with physical harm. Perhaps he hits her. Keep in mind, if there is no threat of harm or actual physical harm, the elements of first degree kidnapping are not there. This doesn't mean you won't be charged with first degree kidnapping by the Clark County District Attorney, however.
  • In a robbery case, the defendant enters into a cell phone store and draws a firearm. He orders customers and employees to move into the back room where he collects their money, cell phones, and wallets.

In cases like the above examples, the defendant is usually going to also be charged with felony battery or robbery (as separate criminal counts). When a defendant is charged with first degree kidnapping and robbery/sexual assault/extortion/murder arising out of the same conduct, there is one more element required: asportation.

Asportation

Asportation is not a word that many people are familiar with. It is an obscure term used to describe an element of first degree kidnapping in cases where a defendant is charged with kidnapping and another offenses arising out of the same conduct or incident. What is it?

Asportation is restraint which increases the risk of harm to the victim or has an independent purpose or significance. According to Nevada case law, asportation must be found when the kidnapping is "incidental" to another offense, where restraint of the victim "is inherent with the primary offense." For example, in the context of a robbery, there is almost always some restraint of the victim, as the victim is unable to move away during the course of the robbery, however brief it may last. Similarly, if a person is committing a felony battery (i.e., a battery with substantial bodily harm) there is some inherent restriction of the victim's movement. That is, while the battery is occurring, the victim can't move or leave. So in order to be convicted of both crimes (i.e., robbery and kidnapping or battery and kidnapping) there must be asportation. This occurs when "the seizure, restraint or movement of the victim substantially exceeds that required to complete the associated crime charged."

SECOND DEGREE KIDNAPPING

Second degree kidnapping means seizing or detaining a person with the intent "to keep the person secretly imprisoned within the State, or for the purpose of conveying the person out of the State without authority of law, or in any manner held to service or detained against the person's will." If you strip away the redundant parts of this definition, second degree kidnapping can be defined as follows: A person commits second degree kidnapping by seizing or detaining a person against her will and moving her, to some degree. That's it.

So in short, first degree kidnapping is kidnapping for ransom or kidnapping to commit one of the serious felonies listed in the statute (extortion, felony battery, robbery, murder, sexual assault). Second degree kidnapping is all other kidnapping.

PUNISHMENT FOR KIDNAPPING

The penalties for kidnapping are set out in NRS200.320. According to this statute, first degree kidnapping is a category A felony. In Nevada, felonies are categorized as A felonies through E felonies, with A felonies being the most serious and E felonies the least serious. The designation of first degree kidnapping as a category A felony places first degree kidnapping in the same category as the most serious crimes in Nevada, such as sexual assault and murder.

The potential prison sentence for first degree kidnapping depends upon whether the kidnapping victim suffered substantial bodily harm during the kidnapping. If the victim suffered substantial bodily harm, the sentencing judge has three options:

  • Life imprisonment without the possibility of parole;
  • Life imprisonment with possible parole after 15 years;
  • 15 to 40 years imprisonment.

If the alleged victim doesn't suffer substantial bodily harm, then the judge may choose from the following sentencing options for the defendant:

  • Life imprisonment with possible parole after 5 years;
  • 5 to 15 years imprisonment.

According to NRS200.320, second degree kidnapping is a category B felony, punishable by 2 to 15 years in prison and a fine of $15,000. Second degree kidnapping is a probationable offense, meaning that the judge may decide to suspend any prison sentence and place the defendant on probation for up to five years.

AIDING AND ABETTING KIDNAPPING

According to NRS200.340, the punishment for aiding and abetting kidnapping is the same as the punishment for actually committing the kidnapping. Aiding and abetting is another theory of legal liability to charge a defendant with a crime. It simply means that someone helps another person commit a crime.

Aiding and abetting should be distinguished from being an "accessory after the fact." If you attempt to help someone avoid prosecution for a crime after the crime has occurred, you are not an aider and abbettor but an accessory after the fact. Accessory after the fact is a less serious charge.

HOW A DEFENSE ATTORNEY CAN HELP

If you are charged with kidnapping in the first or second degree, you should call a criminal defense attorney like me. I have helped many people charged with kidnapping in Las Vegas and Clark County courts. The specific defenses available in your case will depend on the particular facts of your case.

Commonly, first degree kidnapping charges can be defended on the grounds that the defendant had no intent to commit a felony battery. As I explained above, the District Attorney frequently charges men in Clark County with first degree kidnapping in domestic violence situations. In many of these cases, there was no intent to cause substantial bodily harm. Because that element is missing, the defendant can't be convicted of first degree kidnapping.

Of course, the alleged victim may make up threats of physical harm in order to maximize the potential punishment for the defendant. Why would someone do this? Many reasons. For instance, one parent often accuses the other of serious felony offenses in an attempt to gain an upper hand in a child custody case. That's just one example. Alleged victims will falsely and vindictively pursue prosecution for serious felony crimes for myriad reasons. The bottom line is, false accusations are a real phenomenon.

Even when there is strong evidence against the accused, a criminal defense lawyer can help his client to obtain the best plea bargain possible. Many times, negotiations can lead to dropping kidnapping charges altogether.

If you've been charged with kidnapping in Las Vegas, contact me today to talk about your case. Consultations are free. The number on the banner of this site is my personal cell phone number. Call or text me or send me a message through this website if you prefer. I am avaialble on nights, weekeends, and holidays.

By Michael Pandullo

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