Insufficient evidence of facilitation for kidnapping

Kai Tate Mann won in State v. Olsman, No. 120,119 (Kan. App. September 4, 2020), reversing an Elk County kidnapping conviction. Mr. Olsman was charged and convicted of attempted rape and kidnapping. The state specifically charged kidnapping with intent to facilitate flight or the commission of any crime. The COA cited State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976) for the proposition that to support a kidnapping conviction under this subsection, the restraint must not be merely incidental to another crime or inherent in the other crime. In this case, the state alleged that Mr. Olsman grabbed the alleged victim by the arm, said "let's bring up old times," referring to prior sexual encounters, and that when the alleged victim refused, bearhugged her, carried her to the bedroom, threw her on the bed, and climbed on top of her.

The COA applied Buggs to these charges and held that any restraint was the basis of the attempted rape charge:

Here, Olsman physically overpowered [the alleged victim] to commit the attempted rape. There is no independent or significant distinction between Olsman's use of force to carry out the attempted rape and the taking or confinement the State alleges as the basis of the kidnapping charge. The State’s express theory of the case was that Olsman's confinement of [the alleged victim] was the force used to commit the attempted rape. Olsman's actions were both incidental to and inherent in the force or fear supporting the rape charge and do not independently support a kidnapping conviction under the Buggs analysis. Olsman committed the attempted rape by physically overpowering [the alleged victim] and continuing to physically control her movements, in spite of her efforts to resist the attack, until he ultimately allowed her to leave his residence.

The COA observed that there was no evidence that Mr. Olsman was concerned about anyone else being in the house or concern that anyone else would arrive at the house. As a result, the COA held that the evidence was insufficient to support the independent charge of kidnapping.

[Update: the state filed a PR on September 30, 2020. Mr. Olsman filed a cross-PR on November 2, 2020 arguing evidentiary issues related to the attempted rape conviction affirmed by the COA.]

[Further update: the KSC denied the state's PR and Mr. Olsman's cross-PR on February 2, 2021 and the appellate mandate issued on February 9, 2021].