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Kidnapping, § 940.31(1)(b) – Elements – “Hold to Service Against Will”

State v. Jeremy Denton, 2009 WI App 78 / State v. Aubrey W. Dahl, 2009 WI App 78
For Denton: Paul G. Bonneson
For Dahl: Patrick M. Donnelly

Issue/Holding: Though merely incidental to robbery, kidnapping charge is supported on theory that ordering the victim to relinquish property holds that person to service against his or her will:

¶26      … The defendants contend that, under the State’s theory, every robbery would automatically include a kidnapping under Wis. Stat. § 940.31(1)(b) because a person is stopped (seized) and ordered to turn over money (held to service against one’s will). The defendants posit that the “held to service” language in the kidnapping statute “must be limited to situations of forced labor, or involuntary servitude.” …

¶27      We reject the defendants’ argument for two reasons. First, Wisconsin law recognizes that a defendant may be prosecuted for kidnapping even when the kidnapping is incidental to another charged crime. See Harris v. State, 78 Wis. 2d 357, 254 N.W.2d 291 (1977), criticized on other grounds by Wilson v. State, 82 Wis. 2d 657, 264 N.W.2d 234 (1978). …

¶28      Second, the defendants’ attempt to narrow the definition of the “held to service” element of kidnapping to “forced labor, or involuntary servitude” ignores prior case law. The defendants acknowledge that in State v. Clement, 153 Wis. 2d 287, 292, 450 N.W.2d 789 (Ct. App. 1989), we held that “[t]he word ‘service,’ as it is used in [Wis. Stat. §] 940.31, includes acts done at the command of another.” Although Clement set forth that definition while rejecting a defendant’s contention that a kidnapping charge could not “be fulfilled by sexual assault alone,” the definition of “service” remains the same. See Clement, 153 Wis. 2d at 292. We therefore conclude that the State was entitled to charge kidnapping in this case, and we reject the defendants’ contention that the kidnapping conviction must be reversed regardless of the sufficiency of the evidence.

The defendants probably are correct: henceforth, every robbery will also be a kidnapping, just as, after Clement, every sexual assault is also a kidnapping. The defendants are also correct in that historically, the hold-to-service kidnapping was aimed at involuntary servitude, e.g., Perry v. State, 853 P.2d 198, 202 (Okla. Ct. Cr. App. 1993), and not every single street crime under the sun. That said, those few courts who have dealt with the problem obdurately agree with Clement that for kidnapping purposes “service” more or less means any act performed upon command.


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