Aggravated kidnapping is reduced from a first-degree to a second-degree felony if the defendant voluntarily releases the victim in a safe place.1 The legislative history of the statute reveals that this language was included as an incentive for the kidnapper not to cause further harm to the victim. And while the Court of Criminal Appeals has previously narrowed application of the punishment reduction in relation to the voluntariness of the release, the Court recently narrowed it even further by its reading of a “safe place” in Butcher v. State.2
The 9-year-old victim in this case, whom we’ll call Jane, was abducted while walking to her school bus stop one morning. The defendant, Charles Butcher, grabbed her from behind, covered her mouth, and while holding a knife to her throat, threatened to stab her if she called for help. The defendant placed Jane on the floorboard of his truck, and when she reached for her cell phone, he confiscated it and removed the battery.
Butcher took Jane to his apartment, bound her hands, and placed her inside a closet for approximately eight hours. There was no evidence Jane was physically or sexually assaulted during the kidnapping. In fact, twice during her captivity when she informed Butcher she was hungry, he fed her. The defendant then decided to let Jane go, so he put her back inside the truck and drove her back to her neighborhood. Once there, Jane was not sure how to get home, so the defendant instead took her back to the location of the kidnapping (the bus stop) and released her. At trial, this location was described as desolate, but also as a comfortable, middle-class area with no reputation for drugs or violent crime.
When Jane arrived home, her mother was not there. Jane was unable to place a phone call for assistance because the defendant took her cell phone and her household did not have a landline. Jane went to a neighbor’s house and used their telephone to call her mother and report the crime.
An offense under the aggravated kidnapping statute is a felony of the first degree.3 At the punishment stage of a trial, the defendant may raise the issue as to whether he voluntarily released the victim in a safe place. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.4 The term “safe place” is not defined in the Texas Penal Code; thus, the Court of Criminal Appeals determined that the legislature intended for the term to be a fact-specific inquiry (that is, made on a case-by-case basis).
The defendant in Butcher argued that several facts from the trial indicated he released Jane to a safe place and that he was guilty only of the second-degree felony. Those include that he released Jane during the day, she was released in the same location from which she was abducted, and she was an independent child who was allowed to walk the distance between her home and the bus stop. In a 7–2 opinion authored by Judge Hervey, the Court of Criminal Appeals disagreed.
That Jane was released during the day was not dispositive of the safe place issue, noting that there are several places that are dangerous at night as well as during the day. The Court further observed that Jane was without her cell phone, due to the defendant’s actions, and was unable to seek immediate assistance. The girl walked home to an empty house with no telephone service, and then had to seek out a neighbor for assistance. The Court found these facts negated the defendant’s “safe place” argument.
In a prior decision from the Court of Criminal Appeals, also authored by Judge Hervey, the Court contemplated another ambiguous term in this statute, “voluntary.”5 The defendant in Brown stabbed his victim in the neck and kidnapped her. She later persuaded him to release her to a hospital by promising to report that she had stabbed herself with the knife. The defendant claimed that, in light of his “voluntary” release of the victim, the second-degree punishment was appropriate. The trial court disagreed, finding that Brown had not voluntarily released the victim because she had tricked him into it, and he was sentenced under the punishment range for a first-degree felony.
In reversing the Brown decision, the CCA rejected a broad interpretation of the term “voluntary,” instead applying a narrow definition when determining the application of §20.04(d). Under this more narrow interpretation, a kidnap victim is voluntarily released only in the absence of rescue by the police or others or by the victim’s own escape—the defendant’s motivation behind the release doesn’t matter. Bearing this in mind, the lower court remanded the case for a new punishment hearing, finding the defendant should have been subjected to the lesser sentence for voluntarily releasing the victim.
What is a safe place?
The Court of Criminal Appeals has now narrowed its application of this statute twice, first by requiring the release be truly voluntary—not by circumstances or police intervention—and second, that the release is to a safe place. In determining what constitutes a safe place, the Court utilized the lower court’s reliance on Williams v. State, in which the Corpus Christi Court of Appeals set forth seven factors to consider when reviewing the meaning of a safe place.6 The factors are: 1) the remoteness of the location, 2) the proximity of help, 3) the time of day, 4) the climate, 5) the condition of the victim, 6) the character of the location and surrounding neighborhood, and 7) the victim’s familiarity with the location or neighborhood.
Although the opinion holds the term “safe place” is ambiguous, several lower court opinions have grappled with the issue in a helpful, informed way. Judge David Newell’s concurring opinion lists several cases where the Williams analysis has been used.7 The rule seems to be that returning a kidnapping victim to the place from which they were kidnapped does not automatically equal release in a “safe place”—though in certain situations, that location can indeed be safe.8
In adopting these factors as a proper inquiry, the Court was very clear that this list is not exhaustive. Specific details about the victim are relevant as well, such as her age, competency, or physical disability. Whether the defendant released the victim to a safe place will be determined by the totality of the circumstances.
What’s the lesson from Butcher? I think it starts with trial preparation on your next kidnapping case. All the facts that will likely support the defendant’s assertion of the lower punishment range will be fleshed out during guilt/innocence. The trial facts, including the victim’s testimony and that of others involved in the investigation—both officers and lay witnesses—will need to addresses the factors set forth above to determine whether the victim was released to a safe place. And remember that the inquiry is two-fold: Prosecutors must make separate examinations into the voluntary act and into the place being safe. The facts must meet both to entitle the defendant to the second-degree punishment range.
1 Tex. Penal Code §20.04(d).
2 Butcher v. State, No. PD-1662-13, 2015 WL 359087 (Tex. Crim. App. Jan. 28, 2015).
3 Tex. Penal Code §20.04(c).
4 Tex. Penal Code §20.04(d).
5 Brown v. State, 98 S.W.3d 180, 183-188 (Tex. Crim. App. 2003).
6 Williams v. State, 718 S.W.2d 772, 774 (Tex. App.—Corpus Christi 1986), aff’d in part and rev’d in part on other grounds, 851 S.W.2d 282 (Tex. Crim. App. 1993).
7 Butcher, 2015 WL 359087 at *6 (Newell, J., concurring). The first footnote from our esteemed colleague and former contributor to this column included a reference to Harry Potter. So, for those of you who placed bets on Star Wars and Star Trek, pay up.
8 Storr v. State, 126 S.W.3d 647, 652–53 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).