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State v. Welch2/5/2004
hypothesize about any sexual assault or attempted sexual assault that would not also constitute a kidnapping. Indeed, the state seemed to concede as much at oral argument.
Because the evidence here shows no removal and less confinement than was present in Smith, the application of our holding in Smith requires that the conviction for kidnapping be reversed and the sentence for kidnapping be vacated. This conclusion also embraces the reasoning and concerns set forth in our established precedent that kidnapping convictions may unfairly exaggerate "the criminality of a defendant's conduct in those cases where the confinement was completely incidental to the crime committed during the course of kidnapping." State v. Crocker, 409 N.W.2d 840, 845 (1987); see also State v. Morris, 281 Minn. 119, 123-24, 160 N.W.2d 715, 718 (1968).
Affirmed in part and reversed in part.
CONCURRENCE & DISSENT
HANSON, Justice (concurring in part, dissenting in part).
Although I concur in the affirmance of Welch's conviction for attempted second-degree criminal sexual conduct, I dissent on the reversal of Welch's conviction for kidnapping. I would not reach the issue of the sufficiency of the evidence to support the kidnapping conviction because Welch did not argue that issue on appeal and the state has been given no opportunity to address it.
Welch did challenge the imposition of consecutive sentences for kidnapping and attempted second-degree criminal sexual conduct. I would conclude that such sentencing unduly exaggerates the criminality of Welch's conduct because the kidnapping conviction was based on minimal confinement and the sentence for criminal sexual conduct reflected an upward departure more than six times the presumptive sentence. I would modify Welch's sentences of 150 months for attempted criminal sexual conduct and 45 months for kidnapping to run concurrently.
GILBERT, Justice (concurring in part, dissenting in part).
I join in the concurrence and dissent of Justice Hanson.
MEYER, Justice (concurring in part, dissenting in part).
I join in the concurrence and dissent of Justice Hanson.
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