State v. Soto

No. 25                         July 11, 2024                                 561

             IN THE SUPREME COURT OF THE
                   STATE OF OREGON

                  STATE OF OREGON,
                  Respondent on Review,
                             v.
              DEMETRIO MEDINA SOTO,
                   aka Demetrio Soto,
                   Petitioner on Review.
               (CC 18CR75404; 18CR47005)
       (CA A174899 (Control); A174900) (SC S069907)

   On review from the Court of Appeals.*
   Argued and submitted September 12, 2023.
    Rond Chananudech, Deputy Public Defender, Office
of Public Defense Services, Salem, argued the cause and
filed the briefs for petitioner on review. Also on the briefs
was Ernest G. Lannet, Chief Defender, Criminal Appellate
Section.
   Kirsten M. Naito, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
  Before Flynn, Chief Justice, and Duncan, Garrett,
DeHoog, Bushong, and Masih, Justices, and Nakamoto,
Senior Judge, Justice pro tempore.**
   GARRETT, J.
   The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.




______________
   * Appeal from Marion County Circuit Court, Thomas M. Hart, Judge. 

 (2022) (nonprecedential memorandum opinion).
   ** James, J., did not participate in the consideration or decision of this case.
562   State v. Soto
Cite as 

 (2024)                                  563

        GARRETT, J.
         Defendant was convicted of multiple crimes fol-
lowing an incident in which he entered the victim’s apart-
ment in the middle of the night, forcibly moved her from the
entryway to a more secluded area of the apartment, and pro-
ceeded to strangle, sodomize, and assault her behind closed
doors. On review, we consider two issues. First, defendant
was convicted of first-degree kidnapping, ORS 163.235, on
the theory that he had moved the victim “from one place to
another” for purposes of that offense when he carried her
from the entryway to a bedroom and then to the attached
bathroom, where the other crimes occurred. Defendant
contends that the evidence of his moving the victim within
her own apartment is legally insufficient to meet the “from
one place to another” element (also known as the “asporta-
tion” element) of kidnapping. The trial court and the Court
of Appeals both rejected that argument. We allowed defen-
dant’s petition for review to consider that question, and we
now affirm.
         The second issue on review is whether the evidence
allowed the trial court to impose consecutive prison sentences
for defendant’s first-degree kidnapping and first-degree
sodomy convictions. A trial court has discretion to impose
consecutive terms of imprisonment for separate convictions
arising out of a “continuous and uninterrupted course of con-
duct” if the court makes certain findings. ORS 137.123(5).
One such finding is that the offense for which the consecu-
tive sentence is imposed “was not merely an incidental vio-
lation of a separate statutory provision in the course of the
commission of a more serious crime but rather was an indi-
cation of defendant’s willingness to commit more than one
criminal offense.” ORS 137.123(5)(a). On review, defendant
argues that the evidence precludes such a finding because
he had “one central criminal objective” in kidnapping and
sodomizing the victim. We reject that argument as well.
                     I. BACKGROUND
         This case reaches us in the posture of defendant’s
appeal from the trial court’s denial of his motion for judgment
of acquittal. As such, we state the facts underlying defendant’s
564                                              State v. Soto

convictions in the light most favorable to the state. State v.
Sierra, 

, 

 (2010), adh’d to as mod-
ified on recons, 

, 

 (2011).
A. Historical Facts
         The incident giving rise to defendant’s convictions
occurred in the victim’s three-bedroom apartment, where
she lived with her children. Defendant is the father of the
victim’s youngest child. The victim was awake in the early
hours of the morning waiting for a friend to come over. She
heard a knock and opened the door slightly in response, but
instead of her friend, defendant was at the door. Defendant
pushed the door open, grabbed the victim, and carried her
approximately 25 feet into her bedroom.
        Defendant threw the victim on the bed and began
insulting her and calling her names. He turned up the vol-
ume on the TV and closed the window. He closed the chil-
dren’s bedroom door, then the victim’s bedroom door, then
grabbed her by the hair, dragged her into the attached bath-
room, and closed that door. Inside the bathroom, defendant
choked the victim, punched her in the head several times,
and called her names. He recorded the victim on his phone
and forced her to smoke methamphetamine, stating that he
was going to prove that she was an unfit mother. Defendant
then forced the victim to perform oral sex on him.
B.    Procedural History
         The state charged defendant with first-degree kid-
napping, ORS 163.235; first-degree sodomy, ORS 163.405;
first-degree burglary, ORS 164.225; strangulation constitut-
ing domestic violence, ORS 163.187; fourth-degree assault
constituting domestic violence, ORS 163.160; and menacing
constituting domestic violence, ORS 163.190. At the close of
the state’s evidence, defendant moved for judgment of acquit-
tal on the first-degree kidnapping charge, arguing that “[t]he
kidnapping, the moving her in the apartment, is not what this
is about. It’s not a kidnapping. It’s a break-in, assault, bur-
glary, whatever you want to call it, not an actual kidnapping.”
In response, the state argued, among other things, that defen-
dant’s forced movement of the victim was not merely incidental
to his other crimes, and that the bathroom where those other
Cite as 

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crimes occurred was a qualitatively different place from the
entryway. The trial court denied defendant’s motion, agreeing
with the state “that the asportation was not incidental.”
         At the close of the bench trial, the trial court found
defendant guilty of all charges. As to kidnapping, the court
specifically found that defendant’s actions in picking the victim
up and carrying her to her bedroom and bathroom constituted
asportation. The court imposed a 130-month sentence for the
first-degree kidnapping charge and a 100-month sentence for
the first-degree sodomy charge, with 14 months of the latter
to run consecutively to the former. The court explained that
defendant’s “decision to commit the sodomy, while [he was]
exercising power and control in the form of domestic violence
with regard to the kidnap and the burglary, justifies a consec-
utive sentence.”
C. Appeal
         On appeal, defendant argued, as relevant on review,
that the state had failed to prove the asportation element
of kidnapping. Defendant argued that the victim’s ending
place in the bathroom of her apartment was not “qualita-
tively different” from her starting place at the front door of
her apartment, and that defendant’s movement of the victim
within her own apartment had been merely incidental to his
other crimes.
         Defendant also argued that the trial court had not
made the requisite findings to impose consecutive sentences
for the kidnapping and sodomy convictions. Specifically, he
asserted that the commission of the sodomy had had the
same purpose as the kidnapping—to control and demean
the victim—and that the record, therefore, did not support a
finding that he was willing to commit multiple offenses.
        The state reprised its arguments to the trial court
regarding the asportation element.1 As to the consecutive
    1
      Before the Court of Appeals, the state argued that the asportation issue
was unpreserved because defendant’s motion for judgment of acquittal did not
address asportation as a distinct element. However, the record reflects that the
state and the trial court both understood asportation to be at issue in defen-
dant’s motion, as the state made arguments specific to asportation and the trial
court expressly addressed that element in its ruling. Further, the state has
not raised the preservation issue in this court. We therefore conclude that the
566                                                             State v. Soto

sentence, the state argued that kidnapping and sexual
assault are qualitatively distinct, and that the sodomy had
not been merely incidental to the kidnapping.
         The Court of Appeals affirmed. Regarding the
asportation element, the court concluded that a reasonable
factfinder could have found that defendant, before assault-
ing and sodomizing the victim, increased her isolation by
moving her from the front door of her apartment—an area
where others might have seen her—to the bathroom—a more
isolated part of the apartment that could only be accessed
through the primary bedroom. The court further concluded,
without explanation, that the trial court’s imposition of con-
secutive sentences under ORS 137.123(5)(a) was proper.
           Defendant petitioned for review, which we allowed.
                             II. ANALYSIS
        In reviewing a trial court’s denial of a motion for
judgment of acquittal, this court must determine, viewing
the evidence in the light most favorable to the state, whether
a rational factfinder could have found the elements of the
crime beyond a reasonable doubt. State v. Reed, 

, 

 (2005).
A. Kidnapping Statute
         The essential elements of kidnapping are set out
in ORS 163.225, which defines the second-degree crime. A
different statute, ORS 163.235, elevates second-degree kid-
napping to the first-degree crime if a person violates ORS
163.225 with a certain “purpose.” In this case, defendant
disputes whether an essential element of the second-degree
crime was satisfied. He does not dispute that, if the state’s
proof of the second-degree crime was legally sufficient,
then the proof of the first-degree crime also was sufficient.
Accordingly, the relevant statute for present purposes is
ORS 163.225. That statute provides:

policies underlying the preservation rule have been sufficiently served. See State
v. Parkins, 

, 

 (2009) (noting “the important policies
behind the preservation rule—e.g., procedural fairness to the parties and the
trial court, judicial economy, and full development of the record”).
Cite as 

 (2024)                                   567

   “(1) A person commits the crime of kidnapping in the sec-
   ond 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; or
      “(b) Secretly confines the person in a place where the
   person is not likely to be found.”
The statute thus provides that a person may commit kid-
napping in either of two ways: by taking a victim “from one
place to another,” or by “secretly confin[ing]” the victim in
a place where the victim is unlikely to be found. We have
described the first of those as the “asportation” theory of
kidnapping, Sierra, 349 Or at 511, which is the theory under
which defendant was charged.
         Defendant contends that the evidence, viewed in
the light most favorable to the state, is insufficient to show
that he moved the victim “from one place to another” within
the meaning of the statute. That argument presents a ques-
tion of statutory interpretation. Applying our methodology
set out in State v. Gaines, 

, 

(2009), we determine the intent of the legislature by consid-
ering the text in context, along with any legislative history
that we consider helpful.
          This court has construed the phrase “from one place
to another” in several cases that provide the starting point
for our analysis. Over time, our case law has identified two
distinct requirements in the asportation element. First, “a
defendant can be said to have moved the victim from ‘one
place’ to ‘another’ only when the defendant changes the posi-
tion of the victim such that, as a matter of situation and con-
text, the victim’s ending place is qualitatively different from
the victim’s starting place.” Sierra, 349 Or at 513 (emphasis
added). Second, even if that requirement is met, the move-
ment can satisfy the asportation element only if it was “not
incidental” to the commission of another crime. Id. at 513-14.
         The “not incidental” requirement has its origins in
State v. Garcia, 

, 

 (1980). The defen-
dant in Garcia had grabbed the victim while she was walk-
ing alone, put his hand over her mouth and held a knife
568                                              State v. Soto

to her throat, and took her behind a house more than two
blocks away, where he forcibly raped and sodomized her. 

. At trial, the defendant did not move for judgment
of acquittal, and thus, we did not address whether the evi-
dence was sufficient to prove the elements of the defendant’s
kidnapping conviction. 

. Instead, the defendant
argued that a separate conviction for kidnapping, in addition
to his convictions for first-degree rape and first-degree sod-
omy, was contrary to the legislative intent of the kidnapping
statutes. 

. Citing the legislative history of those
statutes, we explained that the legislature had “intended
that there be no conviction of the defendant for the sepa-
rate crime of kidnapping where the detention or asportation
of the victim is merely incidental to the accomplishment of
another crime, particularly that of robbery or rape.” 

.
         Decades later, in State v. Murray, 

, 

 (2006), this court first construed the phrase “from
one place to another.” The victim in Murray had been sitting
in the driver’s seat of her car when the defendant opened the
car door and attempted to push his way inside. 

.
The victim physically resisted, but the defendant finally
pushed her over to the passenger seat. 

. The
victim exited through the passenger door, and the defendant
drove away. 

. At issue was whether the evidence
supported a finding that the defendant had moved the vic-
tim “from one place to another” within the vehicle. 

.
         This court observed that “the concept of ‘taking’ a
person ‘from one place to another’ is, at bottom, an exer-
cise in metaphysics.” 

 We noted the lack of a definition for
“place” in the criminal code, and that resorting to the dictio-
nary definition was unhelpful. 

 at 603-04 (citing Webster’s
Third New Int’l Dictionary 1727 (unabridged ed 2002), which
defined “place” as “an indefinite region or expanse”). We
therefore turned to the legislative history of the kidnapping
statutes, relying extensively on the earlier examination of
that history in Garcia. 

.
       Based on Garcia, we determined that the “ ‘place’
in which something or someone may be found and from
Cite as 

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which that something or someone may be taken is situa-
tional and contextual. It is, among other things, a function
of the object to be moved, as well as a function of the area in
which the movement occurs.” Murray, 

. With
that in mind, we noted that there was no evidence that the
defendant in Murray had tried to keep the victim in the car;
instead, he had driven the car away. 

 That indicated that,
even assuming that there had been some sort of asportation
when the victim shifted positions within the car, it had been
merely “incidental” to the defendant’s theft of the car. 

         Several years later, this court expanded on what
it means to move a victim “from one place to another.” In
State v. Walch, 

, 

 (2009), the
court considered whether moving the victim less than 15
feet, from the driveway of a house into the trunk of a car,
satisfied the asportation element.
         We reiterated that the legislature had not intended
for conduct that was “incidental” to other crimes to be sepa-
rately punishable as kidnapping. 

. But aside from
that legislative concern, we observed, the legislature’s intent
behind the defendant’s required “movement” of the victim
was less clear. 

. We explained that the drafters
had considered but declined to fully adopt either the Model
Penal Code or the New York versions of the kidnapping stat-
ute, which contained distance and time requirements. 

. We further determined that the legislature had not
intended to incorporate a “substantial distance” require-
ment into the asportation element of the statute. 

.
We observed, however, that the wording of the asportation
element narrows the definition of kidnapping in a different
way, by requiring movement “ ‘from one place to another’—
not, for instance, that the defendant simply ‘move’ the vic-
tim or move the victim ‘any distance.’ ” 

         All of that said, we recognized that the distance
moved is an important consideration in determining
whether the victim was moved “from one place to another,”
but not the only consideration. 

. Because the draft-
ers’ primary concern in enacting the kidnapping statute
was to protect the victim’s personal liberty or “freedom of
movement,” we determined that another important factor in
570                                              State v. Soto

the asportation analysis is “whether the movement served
to limit the victim’s freedom of movement and increase
the victim’s isolation.” 

 Applying those principles to the
facts in Walch, we held that the jury could have found that
the defendant took the victim “from one place to another”
because the defendant moved the victim approximately 15
feet from an open driveway—a place where she could have
run away or been seen by others—to the trunk of a car—a
more isolated place that also made her more susceptible to
being moved again. 

.
         Finally, in our most recent case involving the aspor-
tation element, we synthesized our holdings in Murray and
Walch and, in the process, further explicated the meaning
of “from one place to another.” In Sierra, the defendant had
confronted a convenience-store employee, Derrick, outside
the store, pointed a loaded crossbow at him, and directed
him inside the store through a rear entrance. 349 Or at 509.
Once inside, the defendant forced Derrick to kneel behind
a counter. Id. Hearing the commotion inside, two other
individuals, Jeter and Mintun, entered near the front of
the store. Id. The defendant told them to leave; when they
refused, he pointed the crossbow at them and ordered them
to approach the counter in the back of the store and kneel
next to Derrick. Id. at 510. For that conduct, the defendant
was convicted of crimes including first-degree kidnapping of
Derrick and second-degree kidnapping of Jeter and Mintun.
Id. On review, the question was whether the forced move-
ments of Jeter and Mintun within the convenience store sat-
isfied the asportation element of the kidnapping statute. Id.
at 511-12.
         We held that the evidence of that movement was
legally insufficient to prove asportation. Id. at 518. Relying
on the earlier discussions in Murray and Walch, we empha-
sized that, to constitute asportation, the movement must
“change[ ] the position of the victim such that, as a matter
of situation and context, the victim’s ending place is qualita-
tively different from the victim’s starting place.” Id. at 513.
The court explained that, in light of those principles, the
divergent outcomes in Murray and Walch made sense: Murray
involved movement that was incidental to the defendant’s
Cite as 

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substantive crime of stealing the car, while Walch involved
“non-incidental movement of the victim between two quali-
tatively different places.” Id. at 514-15.
         From there, the court went on to dispel a few “mis-
conceptions” regarding the meaning of “from one place
to another.” Id. at 516. First, we cautioned that “minimal
movement that effectuates little change in the victim’s
position—such as, for example, movement requiring one to
step to the side, or move from a standing position to a sitting
or lying position”—will be unlikely to qualify. Id. Next, we
said that “the degree of force or threat used by a defendant
to effectuate the victim’s movement” is typically irrelevant
to the inquiry. Id. Finally, we explained that “the degree
by which the movement in question increases defendant’s
control over the victim, or isolates the victim from the view
of others, is relevant” to the asportation inquiry “only to
the extent that those considerations tend to demonstrate
the qualitative difference between where the victim started
(‘from one place’) and where the victim was as a result of the
defendant’s conduct (‘another [place]’).” Id.
         With those principles in mind, the court deter-
mined that the defendant had not moved Jeter and Mintun
“from one place to another.” Id. at 517. Key to that conclusion
was that Jeter’s and Mintun’s beginning location (inside the
store, near the front door) and their ending location (inside
the same room, behind a counter near the rear) were not
qualitatively different. Id. Instead, the court noted, “Jeter
and Mintun ended up in the same room of the same building
that they had entered.” Id. The court also concluded that the
defendant’s movement of Jeter and Mintun was “incidental
to—that is, inherent in, or a chance or minor consequence
of—[the] defendant’s independent crimes of unlawful use of
a weapon or menacing against those victims.” Id. at 517-18.
The court explained that, in light of Jeter’s and Mintun’s
refusal to leave the room, the defendant’s movement of them
was part of his positioning of his victims in a single loca-
tion so that he could point his crossbow at all three victims
simultaneously. Id. at 518. Accordingly, the court concluded
that the state had introduced insufficient evidence to prove
the charges of second-degree kidnapping. Id.
572                                              State v. Soto

        Returning to the present case, defendant argues
that the evidence was insufficient to establish asportation
because the victim was moved only a short distance (approx-
imately 31 feet total); the purpose of the movement was to
accomplish the other crimes of sodomy and assault; and there
was no qualitative difference between the victim’s starting
and ending locations within her own apartment. The state
responds that the distance of the victim’s movement is not
independently significant when the other circumstances
of the movement support a finding that the beginning and
ending locations were qualitatively different, a finding that
can be made on this record because moving the victim to
the bedroom and then the bathroom served to limit her
freedom of movement and increase her isolation. And, the
state further argues, the movement was not incidental to
the commission of defendant’s other crimes because it was
not “inherent” in the conduct underlying those crimes.
          We agree with the state. First, to the extent that
defendant argues that the relatively short distance between
the apartment’s entryway and the bathroom precludes a
finding of asportation, our caselaw forecloses that argument.
As we explained in Walch, the distance that the victim is
moved is a relevant, but not dispositive, consideration in the
asportation inquiry. 346 Or at 475. Certainly, movement of a
“substantial distance” is more likely to entail moving the vic-
tim “from one place to another.” Id. However, we have noted
that the phrase “from one place to another,” by its terms,
“does not require that a defendant take a victim a specific
distance, nor does it require that the distance be substan-
tial.” Id. at 477 (internal quotation marks omitted). Even
when the distance moved is relatively short, that movement
can satisfy the asportation element when it occurs between
two qualitatively distinct places. In Walch, for instance, we
concluded that the trunk of a car was a different place than
the driveway, despite the distance moved being at most 15
feet. Id. at 476.
          The key question, as we explained in Sierra, is
whether the victim was moved to a qualitatively differ-
ent location, a question that is informed by considerations
including whether the change in location served to increase
Cite as 

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the victim’s isolation and limit her freedom of movement.
349 Or at 513, 516.2 For example, it was important to our
analysis in Murray that the movement of the victim from
the driver’s seat of the vehicle to the passenger seat not only
was short in distance, but did nothing to further isolate her
or limit her freedom of movement. See Walch, 

-
76 (describing the defendant’s movement of the victim in
Murray as “[f]ar from serving to isolate the victim or limit
her freedom of movement”). Conversely, in Walch, the move-
ment of the victim from the driveway to the trunk of the car,
although short in distance, effected a qualitative change
because the victim was moved from an open area where
she could have run away or been visible to others—a drive-
way—to an enclosed space. 

. The mobile nature
of the car, although not dispositive, further demonstrated
the qualitative difference between the victim’s starting and
ending locations in that case. 

         Here, defendant places great emphasis on the fact
that the victim was moved within her own apartment. We
are unpersuaded that, for that reason alone, no reasonable
factfinder could find that a qualitative change in the victim’s
location occurred. Defendant relies on State v. Wolleat, 

, 

 (2005), a case in which the defen-
dant had moved the victim from one room of her apartment
to another in the course of an assault. We held that no rea-
sonable juror could find that the defendant “had the statuto-
rily required intent.” 

. Defendant argues that our
holding in that case “strongly suggested” that room-to-room
movement is not movement “from one place to another” for
purposes of kidnapping.
        Defendant’s reliance on Wolleat is misplaced. Only
the intent element of kidnapping was at issue in that case,
and the only evidence of intent was the movement itself. We
explained that the evidence of the movement, under the cir-
cumstances of that case, was “insufficient to establish the

    2
      In Sierra, we explained that neither isolation nor control of the victim may
substitute the ultimate inquiry whether the victim was moved “from one place
to another,” because those factors are not required by the wording of the statute.
349 Or at 516. We noted, however, that those factors are relevant to the extent
that they demonstrate any qualitative difference between the victim’s starting
and ending locations. Id.
574                                                            State v. Soto

mental element necessary to prove kidnapping.” Id. Our
analysis in Wolleat had nothing to do with the asportation
element, which was not at issue on review. We did not sug-
gest that that same movement of a victim that occurred in
Wolleat would be insufficient to satisfy the distinct asporta-
tion element. In fact, we observed that the phrase “from one
place to another,” by its terms, “does not require that a defen-
dant take a victim a specific distance, nor does it require that
the distance be substantial.” Id. at 473. Moreover, in Sierra,
we expressly rejected the proposition that “movement of a
victim within a single structure will never be place-to-place
movement” for purposes of the asportation element. 349 Or
at 517 (emphasis in original).3
         Here, the state introduced evidence from which a
rational factfinder could determine that the relatively short
distance traveled by the victim ended at a qualitatively dif-
ferent location. Defendant argues that, because it occurred
within the victim’s own residence, any qualitative difference
was slight. But a rational factfinder could conclude other-
wise. The entryway of the victim’s apartment was a more
open area compared to the primary bedroom and bathroom.
At the front door of the apartment, the victim had more of
an opportunity to run away or be seen or heard by others—
perhaps by neighbors or her children who were sleeping in a
nearby bedroom with an open door. After moving the victim
from the entryway of her apartment to the primary bed-
room, defendant closed the door of the children’s bedroom,
turned up the music in the primary bedroom, and closed the
window and door of that room. He then moved the victim
into the adjoining bathroom and closed the bathroom door. A
factfinder could have found that defendant’s actions effected
a qualitative change in the victim’s location by physically
    3
      Although this court has not previously considered whether room-to-room
movement within a residence may satisfy the asportation element, the Court of
Appeals has done so at least twice. Compare State v. Washington, 

, 

 (2014), rev den, 

 (2015) (affirming conviction where
the victim was moved from apartment entryway to “a more isolated place at the
top of the stairs,” where the defendant then raped her), with State v. Opitz, 

, 

 (2013) (reversing conviction where the defendant
had moved the victim around an apartment during an ongoing assault, reason-
ing that “the functional differences among the rooms in the victim’s apartment
had no effect on the extent to which [the] defendant interfered with the victim’s
personal liberty”). Those cases are consistent with our holding today.
Cite as 

 (2024)                                                       575

moving her to a place that increased her isolation, reduced
her ability to escape, and reduced the likelihood that she
would be seen or heard by others nearby.4
         Ultimately, defendant’s argument rests on compet-
ing inferences about the degree to which the surrounding
circumstances contributed to an increase in the victim’s iso-
lation and restricted her freedom of movement when defen-
dant moved her to the bathroom. We reject defendant’s argu-
ment that no rational factfinder could conclude that, under
those circumstances, the bathroom was a qualitatively dif-
ferent place from the entryway. In sum, a rational factfinder
could find that defendant moved the victim “from one place
to another.”
         But, even when there is place-to-place movement
between qualitatively distinct locations, our case law has
required that the movement, to support a conviction for kid-
napping, must not be merely incidental to the commission
of another crime. See Sierra, 349 Or at 513-14. In our cases
involving the “act” element under the asportation theory, we
have evaluated the “not incidental” requirement in terms of
whether the movement was an inherent or necessary compo-
nent of the defendant’s underlying crimes. See id. at 517-18.
In Sierra, for example, we determined that the defendant’s
movement of the victims from one end of the convenience
store to the other—all while the defendant pointed a cross-
bow at them—was inherent in the defendant’s other crimes
of unlawful use of a weapon and menacing. Id. at 518.
Similarly, in Murray, the defendant’s movement of the vic-
tim from the driver seat to the passenger seat of the car was
part of the defendant’s theft of the victim’s car. See 

       In Sierra, we noted that ORS 163.225(1)(a) and (b) provide alternative ways
for the state to prove the act element of kidnapping. 349 Or at 511. Namely, the
state must prove that the defendant either took the victim “from one place to
another,” or “secretly confine[d]” the victim in a place where the victim is unlikely
to be found. See id. However, as we have explained, “the asportation and confine-
ment elements are not mutually exclusive.” Walch, 

 n 11; see Sierra,
349 Or at 516 n 6 (reiterating that point). “A defendant might well take a person
from one place to another (with the requisite intent) and secretly confine the per-
son where the person is not likely to be found.” Walch, 

 n 11 (empha-
sis in original); see 

 (explaining that “[t]he car trunk is relevant, in our
view, not because it is a ‘secret’ place where the victim might be confined and not
be likely to be found, but because it was ‘another’ ‘place’ to which defendant took
the victim after he attacked her outside the house”).
576                                                               State v. Soto

at 606. In Walch, on the other hand, we explained that the
defendant had assaulted and robbed the victim, and also
forcibly moved her into the trunk of a car, indicating that
that movement was not part of the defendant’s other crimes
of robbery and assault. 346 Or at 479.
        Those cases demonstrate that the timing and
sequence of the events, in light of the other crimes that the
defendant committed, are central in determining whether
the defendant’s movement of the victim was incidental to
those crimes. In both Sierra and Murray, the defendants’
movement of the victims occurred in the course of their com-
mission of other substantive crimes, such that that move-
ment was part and parcel of the conduct underlying those
crimes.
          Here, in addition to kidnapping, defendant was
convicted of burglary, sodomy, assault, strangulation, and
menacing.5 Viewing the facts in the light most favorable to
the state, we conclude that a reasonable factfinder could find
that defendant’s movement of the victim was not incidental
to any of those other crimes.
         The evidence supports a determination that defen-
dant’s movement of the victim was a distinct step in a series
of events occurring over approximately 30 to 45 minutes.
Defendant picked up the victim after he had completed the
act of unlawfully entering her apartment. The sodomy and
strangulation occurred after the movement was complete.
The movement of the victim was not physically necessary
to the commission of those other crimes, and, because it
occurred earlier in time, a factfinder could have determined
that it was not an “incidental” part of the same conduct that
constituted those offenses, as was true in Sierra and Murray.
         Defendant’s principal argument to the contrary
is that the movement of the victim was incidental because
its purpose was to accomplish the assault and sodomy. But
our asportation cases have not treated the purpose of the
    5
      Although it is not entirely clear from the record, the trial court appears to
have based the menacing conviction on defendant’s statement to the victim, after
the incident was over, that he would kill her if she called the police. In his brief-
ing, defendant states that his burglary, strangulation, and menacing convictions
“do not appear pertinent to the issues on appeal.”
Cite as 

 (2024)                                                   577

movement as the focus of the “not incidental” inquiry. As
we have explained, those cases focus the “not incidental”
inquiry on whether the movement was “inherent in, or a
chance or minor consequence of” other crimes. Sierra, 349
Or at 517. A defendant’s purpose behind the movement may
be relevant to understanding whether it was incidental, so
understood, but it is not dispositive, particularly in a case
where the defendant’s state of mind is not at issue.6
           Defendant’s argument is also difficult to square
with the way that the legislature has structured the kid-
napping statutes. As noted earlier in this opinion, the core
elements of kidnapping are set out in ORS 163.225, which
defines the second-degree crime. Under a related statute,
ORS 163.235, the crime is elevated to first-degree kidnap-
ping if the defendant committed second-degree kidnapping
with a specified “purpose,” including “[t]o cause physical
injury to the victim.” ORS 163.235(1)(c). That purpose tracks
the elements of fourth-degree assault, for which a person
must “[i]ntentionally, knowingly or recklessly cause[ ] phys-
ical injury to another.” ORS 163.160(1)(a) (emphasis added).
As a result, first-degree kidnapping under ORS 163.235
(1)(c) is, essentially, kidnapping for the purpose of commit-
ting assault. As the state points out, if defendant were cor-
rect that the forced movement of a victim for the purpose
of accomplishing assault makes that movement “inciden-
tal” to the assault, then ORS 163.235(1)(c) would have no
effect. Thus, we agree with the state that, for purposes of
the asportation “act” element, whether the defendant’s pur-
pose behind the movement was to accomplish another crime
is not the focus of the “not incidental” inquiry.7
    6
       Although one of defendant’s assignments of error below was that the evi-
dence was insufficient to prove his intent, he did not seek this court’s review
regarding the intent element. Only the asportation element is at issue on review.
    7
       Although the parties have not raised this issue, we observe that our case
law reflects some tension as to whether the “not incidental” requirement is even
properly considered as part of the asportation element, as opposed to the intent
element, of kidnapping. As explained in this opinion, Murray and Sierra treated
the “not incidental” requirement as part of the asportation element. However,
this court also has recognized more than once that the legislature’s desire to
avoid convictions for “incidental” kidnappings was addressed through the intent
element, not the asportation element—a point that had earlier been made in the
dissenting opinion in Murray. 

 (Kistler, J., dissenting) (explain-
ing that the legislature “did not change the ordinary understanding of ‘asporta-
tion’ ” to distinguish kidnapping from conduct incidental to another crime); see
578                                                             State v. Soto

         For the foregoing reasons, we conclude that the evi-
dence was sufficient to permit a reasonable factfinder to find
that defendant moved the victim “from one place to another”
for purposes of ORS 163.225(1)(a).
B.    Consecutive Sentencing Statute
         Defendant next argues that the trial court erred
when it imposed consecutive sentences for defendant’s first-
degree kidnapping and first-degree sodomy convictions.
Under ORS 137.123(5), when a defendant has “separate
convictions arising out of a continuous and uninterrupted
course of conduct,” the trial court has discretion to impose
consecutive sentences for each conviction if the court makes
certain findings in accordance with paragraphs (a) or (b).
Paragraph (a), the only provision at issue here, requires the
trial court to find “[t]hat the criminal offense for which a
consecutive sentence is contemplated was not merely an
incidental violation of a separate statutory provision in the
course of the commission of a more serious crime but rather
was an indication of defendant’s willingness to commit more
than one criminal offense.” ORS 137.123(5)(a).
         The parties dispute the meaning of the phrases
“merely an incidental violation” and “willingness to com-
mit more than one criminal offense” in paragraph (a). As
a preliminary matter, we note that the “merely incidental”
inquiry presented under the consecutive sentencing statute
differs from the inquiry that we just discussed under the
kidnapping statute. The latter is a product of our case law
interpreting the intended meaning of the kidnapping stat-
ute, while the former is a product of the wording in a statute
that this court has not yet construed. The parties’ dispute
thus presents an issue of statutory interpretation.
also Walch, 

 (explaining that the legislature addressed the “not
incidental” concern through the intent element); State v. Mejia, 

, 

 (2010) (“[T]he legislature reserved the prosecution and punishment of
kidnapping for situations ‘where the detention or asportation is not merely inci-
dental to the commission of the underlying crime.’ * * * The intent element of
kidnapping was the legislature’s means to achieve that goal.”).
    A future case may require us to resolve that tension. In this case, however,
the parties (understandably, in light of Murray and Sierra) have treated the “not
incidental” requirement as relevant to the asportation analysis, and have not
asked us to reconsider the holding or reasoning of any prior case. Accordingly, we
adopt the same approach.
Cite as 

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         ORS 137.123 was adopted by initiative in the 1986
election as part of Ballot Measure 10, known as the “Crime
Victims’ Bill of Rights.” Or Laws 1987, ch 2, § 1. In cases
involving a statute enacted by the voters, such as here, we
apply a similar method of statutory interpretation as we do
to statutes enacted by the legislature, “with the goal of dis-
cerning the intent of the voters who passed th[e] initiative[ ]
into law.” Hazell v. Brown, 

, 

(2012) (citing State v. Guzek, 

, 

(1995)). We begin with the text and context of ORS 137.123,
as the text itself is “the best evidence of the voters’ intent.”
Guzek, 

.
         The statute does not define an “incidental viola-
tion” nor a “willingness” to commit more than one offense.
When a statutory word or phrase is undefined, we typically
assume, absent contrary indicators of intent, that the word
or phrase has its “ ‘plain, natural, and ordinary’ ” meaning.
Dowell v. Oregon Mutual Ins. Co., 

, 

 (2017) (quoting PGE v. Bureau of Labor and Industries,

, 

 (1993)). We frequently consult
“dictionary definitions in such cases on the assumption that,
if the legislature did not provide a specialized definition for
a term, the dictionary will help to shed light” on its intended
meaning. 

 We do not, however, interpret statutes solely
based on dictionary definitions. Id. at 71-72. Instead, we
examine word usage in context to determine what the legis-
lature most likely intended. Id. at 72.
         “Incidental” ordinarily means, as relevant here,
“subordinate, nonessential, or attendant in position or sig-
nificance[.]” Webster’s 1142 (unabridged ed 2002).8 “Willing-
ness” is defined as “the quality or state of being willing.” Id.
at 2617. The relevant definition of “willing” is “inclined or
favorably disposed in mind[.]” Id. Defendant and the state

    8
       Both parties rely on the 2002 edition of Webster’s for the definition of “inci-
dental.” We note that Black’s Law Dictionary also defines “incidental,” but neither
party raised the issue of whether “incidental” is a legal term of art. We conclude
that, even if it was a term of art, our analysis would not change because the defi-
nitions are substantially similar. See Black’s 911 (11th ed 2019) (defining “inci-
dental” as “[s]ubordinate to something of greater importance; having a minor
role”); see also Black’s 686 (5th ed 1979) (defining “incidental” as “[d]epending
upon or appertaining to something else as primary”).
580                                             State v. Soto

both begin with those dictionary definitions, but they draw
different conclusions from them.
         Defendant contends that the phrase “merely an
incidental violation” informs the meaning of the phrase
“willingness to commit more than one” offense. An offense
is “incidental,” in defendant’s view, when it is “subordinate
or insignificant to a central criminal objective.” Defendant
concludes that a “willingness to commit more than one
criminal offense” means that “the defendant was inclined
to commit more than one offense and that the other offense
was not a subordinate or insignificant act to accomplish a
central criminal objective.” Based on that interpretation,
defendant argues that the trial court erred in imposing
consecutive sentences because, according to defendant, the
trial court found that defendant had “one central criminal
objective” in kidnapping and sodomizing the victim: to exer-
cise power and control over her. Defendant further argues
that the evidence does not show a “willingness” to commit
more than one offense because defendant did not “suddenly
decide” to sodomize the victim after carrying her to the bed-
room; rather, the evidence reflects a unitary intent, from the
beginning of the incident to the end, to control the victim by
kidnapping and sodomizing her.
         The state agrees that the “merely incidental” phrase
informs the meaning of the “willingness” phrase, arguing
that, by contrasting the “merely incidental” and “willing-
ness” phrases with “but rather,” the sentence structure of
the text suggests that a “willingness to commit more than
one” offense is shown when the second offense is not “merely
incidental” to the commission of a “more serious crime.”
Multiple considerations are relevant in determining whether
an offense was “incidental” to a more serious crime, the state
argues, including whether the second offense was necessary
to commit the first offense, whether the second offense was
committed with a different “intention” or conduct, and the
relative seriousness of the offenses. Based on those factors,
the state argues that the consecutive sentence for defendant’s
sodomy conviction was permissible because defendant’s sod-
omy of the victim was not “incidental” to the kidnapping but,
instead, showed defendant’s “willingness” to commit more
Cite as 

 (2024)                                  581

than one offense. The state emphasizes that (1) defendant did
not need to commit either crime in order to commit the other;
(2) the conduct underlying each crime was completely distinct;
(3) both offenses are equally serious as measured by the pen-
alties for those crimes, and (4) the sodomy occurred after
the kidnapping was already complete. The state disagrees
that a defendant’s “central criminal objective” is relevant
to the inquiry, noting that the drafters did not include that
phrase in the text of the statute. And, even if the centrality
of a “criminal objective” was relevant, the state argues that
the trial court made no finding that defendant had only one
criminal objective, and that the evidence, in fact, permits a
finding that defendant had more than one criminal objective.
         Beginning with the structure of ORS 137.123(5)(a),
we agree with both parties that the meaning of the “merely
incidental” phrase informs the meaning of the “willingness”
phrase. That is so because the statute uses the term “but
rather” to connect those two phrases. The word “but” is a
conjunction that is used to express a contrast. See Randolph
Quirk et al., A Comprehensive Grammar of the English
Language 935 (1985); see also Webster’s at 303 (defining “but”
as “on the contrary * * * used to connect coordinate elements”).
When a sentence includes a negation before “but,” e.g., the
criminal offense “was not merely an incidental violation * * *
but rather was * * *,” the contrast expressed by “but” is an
affirmative repudiation of what has already been said. Quirk,
Comprehensive Grammar at 935. In such a case, the force of
“but” can be emphasized by adding “rather” or “on the con-
trary.” 

 (providing the example, “I am not objecting to his
morals, but rather to his manners.”); see also Bryan A. Garner,
A Dictionary of Modern Legal Usage 97 (1987) (explaining
that “but rather” “is usually unnecessary, either word singly
doing the work that both purport to do”); Webster’s at 1885
(defining “rather” as “to the contrary : instead”). Accordingly,
the structure of paragraph (5)(a) suggests that, if an offense
was not an “incidental” violation, then that offense, instead,
indicated a “willingness” to commit more than one offense.
        Turning to what it means for an offense to be an
“incidental” violation or, instead, an indication of a “will-
ingness” to commit more than one offense, we find a few
582                                              State v. Soto

contextual clues throughout different portions of paragraph
(5)(a). First, the nature of the offenses and the criminal con-
duct giving rise to the offenses are relevant considerations.
The statute focuses the inquiry on the offenses that the defen-
dant committed. And the “willingness” phrase emphasizes
that an offense must indicate the defendant’s willingness to
commit “more than one criminal offense.” Those focal points
necessarily require the trial court to evaluate the offenses
at issue, suggesting that the similarities and differences
between the nature of the offenses and the criminal conduct
giving rise to those offenses are relevant to the inquiry.
         Next, the timing of the offenses is a relevant con-
sideration. The statute precludes the imposition of a consec-
utive sentence for an offense that is “merely an incidental
violation of a separate statutory provision in the course of
the commission of a more serious crime.” ORS 137.123(5)(a)
(emphasis added). We note that subsection (5) of the statute
already contemplates that the offenses arise “out of a con-
tinuous and uninterrupted course of conduct.” Paragraph (a)
imposes an additional temporal restriction by describing
an incidental violation that occurs “in the course of”—or
during—the commission of another crime. See Bryan A.
Garner, Modern American Usage 477 (3d ed 2009) (explain-
ing that “in the course of” “is often wordy for during or
while”). Accordingly, the timing of the offenses is relevant
to determine whether an offense was “merely an incidental
violation of a separate statutory provision” or, instead, indi-
cated a “willingness to commit more than one” offense.
         Finally, the seriousness of the offenses is a relevant
consideration as well. Paragraph (a) expressly describes an
“incidental violation” as one that occurs during the commis-
sion of “a more serious crime.” That understanding is con-
sistent with the definition of “incidental.” When an offense
is “subordinate, nonessential, or attendant in position” to a
more serious crime, and it occurred during the commission
of that more serious crime, it is more than likely an “inci-
dental” violation. Conversely, an offense of equal serious-
ness to the underlying offense is less likely to be “merely an
incidental violation of a separate statutory provision.”
Cite as 

 (2024)                                583

        In sum, the statute’s text and context suggests that,
in considering whether to impose a consecutive sentence
under ORS 137.123(5)(a), the trial court should consider the
similarity of the offenses and the underlying criminal con-
duct, the timing of the offenses, and the comparative seri-
ousness of each offense.
         Defendant maintains that, based on the definition
of “incidental,” an offense that is “subordinate or insignifi-
cant” to a “central criminal objective” is an “incidental vio-
lation” under the statute. Although the phrase “criminal
objective” cannot be found in the text of the statute, defen-
dant argues that the legislative history of the statute shows
an intent to preclude consecutive sentences where the defen-
dant “had one criminal objective that happened to violate
multiple criminal offenses.” He contends that, in this case,
he had one central criminal objective in kidnapping and
sodomizing the victim: to control the victim through phys-
ical force. Accordingly, consecutive sentences were not per-
mitted for those offenses. The state responds that the text,
context, and legislative history of the statute show that the
defendant’s central criminal objective is not the focus of the
inquiry. We agree with the state.
         The absence of the phrase “criminal objective” from
the text of ORS 137.123 is significant because, under our
statutory interpretation methodology, the text is the best
evidence of a statute’s intended meaning. See Dowell, 

; Guzek, 

. As we have explained, the stat-
ute here precludes a consecutive sentence for an “incidental
violation” that occurred during the commission of a “more
serious crime.” Instead of focusing the inquiry on whether
the offense was incidental to a central criminal objective,
the text of the statute focuses on whether the offense was
incidental to a more serious crime. Defendant’s construction
of the statute would require us to insert the concept of a
“criminal objective” where the drafters of the statute did not
include that language. See ORS 174.010 (when interpreting
a statute, a court is “not to insert what has been omitted, or
to omit what has been inserted”).
        Based on that understanding of the statute, the
record supports the trial court’s determination that the
584                                               State v. Soto

statutory requirements for imposition of a consecutive sen-
tence were satisfied here, and therefore, it could impose a
partially consecutive sentence for defendant’s first-degree
sodomy conviction. Specifically, it does not appear that
defendant’s sodomy of the victim was a subordinate or non-
essential offense that occurred during the commission of
a more serious crime. First, the sexual nature of the sod-
omy charge is distinct from the nature of kidnapping. Next,
defendant’s conduct in forcing the victim to perform oral sex
on him was a distinct act and a distinct type of criminal con-
duct from his actions in the movement giving rise to the kid-
napping charge. First-degree kidnapping and first-degree
sodomy are both Class A felonies, meaning they are crimes
of equal seriousness. See ORS 163.235(2); ORS 163.405(2).
And, finally, defendant’s sodomy of the victim was tempo-
rally distinct from the movement and conduct giving rise to
the kidnapping charge. Those factors all suggest that the
sodomy was not an “incidental violation” but, instead, indi-
cated defendant’s “willingness” to commit more than one
offense.
         Defendant’s argument to the contrary relies almost
entirely on legislative history. Evaluating the history of ORS
137.123, as we will explain, is an unusual exercise. In this
case, we do not find the legislative history that defendant
relies on particularly useful or persuasive in determining
the voters’ intended meaning of the text.
          As noted above, ORS 137.123 was adopted by ini-
tiative in the 1986 election as part of Ballot Measure 10,
known as the “Crime Victims’ Bill of Rights.” Or Laws 1987,
ch 2, § 1. The ballot title described the measure as “revis[ing]
many criminal laws concerning victims’ rights, evidence,
sentencing, [and] parole.” Official Voters’ Pamphlet, General
Election, Nov 4, 1986, 49. The consecutive-sentencing issue
received little attention in the voters’ pamphlet. The ballot
title explanation stated that the measure “[l]imits sentence
merger for multiple crimes” and “[s]ets consecutive sentence
rules.” Id. The explanation section of the pamphlet stated
that Measure 10 would “[s]lightly expand circumstances
under which a person may be convicted of separate offenses
and may be given consecutive sentence.” Id. at 52. In an
Cite as 

 (2024)                               585

argument opposing the measure, the writer argued that
Ballot Measure 10 was “unnecessary” because it “repeat[ed]
changes already adopted by the Oregon Legislature[,]”
including that “[s]eparate convictions and sentences are now
required.” Id. at 55.
         The parties note that the voters’ pamphlet provides
little guidance as to the intended meaning of the phrases
“merely an incidental violation” and “willingness to com-
mit more than one criminal offense.” Accordingly, defen-
dant resorts to the legislative history of former ORS 137.122
(1985) as indicative of the intended meaning of ORS 137.123.
We will briefly explain the relationship and enactment his-
tory of those two distinct yet related statutes.
         In the years preceding the passage of Ballot Measure
10, courts, in the absence of statutory guidance about how to
deal with multiple convictions and sentences arising from a
single criminal episode, had “fashioned judicial rules” that
sometimes required the consolidation (or “merger”) of ver-
dicts. State v. Crotsley, 

, 276-77 & nn 3-4, 

 (1989). Prior to the 1986 election, several propos-
als were introduced as attempts to provide more statutory
guidance. 

. One of those proposals included Ballot
Measure 10, an initiative that was filed with the Secretary
of State in April 1985 and contained the consecutive sen-
tencing provision now found in ORS 137.123. See 

 at 276
n 3; Voters’ Pamphlet at 50. At around the same time, the
Oregon Department of Justice and the Oregon District
Attorneys Association proposed Senate Bill (SB) 257 (1985)
and House Bill (HB) 2331 (1985) to the legislature, both
of which contained identical consecutive sentencing provi-
sions as Ballot Measure 10. See Crotsley, 

 n 3;
Ex A, House Committee on Judiciary, HB 2331, May 27,
1985 (accompanying testimony of Deputy Attorney General
William F. Gary). Thus, the consecutive sentencing provi-
sions of Ballot Measure 10, SB 257, and HB 2331 all began
in identical form, each including the same “merely inciden-
tal” and “willingness” phrases at issue here. However, while
Ballot Measure 10 ultimately reached the voters in that
form, SB 257 and HB 2331 were amended during the legis-
lative process. See Crotsley, 

 n 3. Notably, the
586                                             State v. Soto

legislature deleted the “willingness” phrase from the con-
secutive sentencing provisions of SB 257 and HB 2331. See
Minutes, House Committee on Judiciary, HB 2331, May 29,
1985, 10-12.
         The first provision to become law was HB 2331,
which the legislature enacted, without the “willingness”
phrase, in June 1985. See Crotsley, 

 n 3; Or
Laws 1985, ch 722, § 2. That provision was codified as former
ORS 137.122 (1985). See id. But a year and a half later, the
voters passed Ballot Measure 10, which contained the same
wording (with the “willingness” phrase) as the original HB
2331, before the legislature had amended and passed it. That
provision passed by the voters was codified as ORS 137.123.
Or Laws 1987, ch 2, § 12. Former ORS 137.122 (1985), which
the legislature had passed the year before, was “impliedly
repealed by ORS 137.123,” and formally repealed by the leg-
islature in 1991. Or Laws 1991, ch 67, § 28.
         Defendant relies on one statement of a Department
of Justice representative, Deputy Attorney General William
Gary, that was made to the legislature in 1985 regarding the
original version of HB 2331, which included both the “merely
incidental” and “willingness” phrases. Deputy Attorney
General Gary testified that the “concept” that that language
was meant to “embod[y] * * * is that where you have multiple
offenses committed in the same course of conduct, you ought
not to be making sentences consecutive if you have a person
who is walking across several violations toward one central
criminal objective.” Tape Recording, House Committee on
Judiciary, HB 2331, May 29, 1985, Tape 686.
         Considering the manner in which the separate
pieces of legislation described above evolved, we decline to
give much weight to Deputy Attorney General Gary’s testi-
mony. There is nothing to indicate that the voters in 1986,
considering a voter-initiated measure, would have been
aware of discussions that occurred at the legislature a year
and a half earlier regarding a different piece of legislation.
Moreover, even assuming that voters in 1986 may have been
generally aware that the legislature had recently enacted a
consecutive sentencing statute, former ORS 137.122 (1985),
we cannot infer that the voters intended ORS 137.123(5)(a)
Cite as 

 (2024)                                   587

to have the same meaning as former ORS 137.122 (1985),
because those provisions contain materially different lan-
guage. We see no evidence that voters were informed that
ORS 137.123(5)(a) would be consistent with and somehow
“revive” the text of an early version of a bill that the legisla-
ture had not approved.
                     III.   CONCLUSION
         We conclude that the evidence was sufficient for a
rational trier of fact to find that defendant moved the victim
“from one place to another” for purposes of ORS 163.225(1)(a).
We further conclude that the trial court did not err in impos-
ing a partial consecutive sentence under ORS 137.123(5)(a).
        The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.