## Facts

- Timothy Collier met a 15-year-old girl at a roller-skating rink.
- The girl got into Collier’s car after he told her he would take her to a restaurant.
- The pair left the rink and engaged in sexual conduct, including sexual intercourse.
- The victim testified she submitted because Collier threatened her while holding a knife.
- Collier testified the victim propositioned him and consented to the sexual conduct.
- A police officer testified that when the victim returned to the rink she was crying, and her clothing and hair were in disarray.
- Collier was charged with rape and kidnapping and was tried to a jury.
- The jury convicted Collier of both rape and kidnapping.
- At trial, the court declined to instruct the jury on sexual battery as a lesser offense.

## Issues

1. Did the trial court err by refusing to instruct the jury on sexual battery as a lesser-included offense of rape?
2. Could Collier be convicted and punished for both kidnapping and rape, or did the kidnapping merge because the restraint or movement of the victim was only what was needed to commit the rape?

## Decision

- The appellate court affirmed Collier’s convictions.
- The court held the trial court did not commit reversible error by refusing to instruct on sexual battery.
- The court held the rape and kidnapping convictions could both stand because the kidnapping conduct was sufficiently separate from the rape to support an additional conviction.

## Legal Principles

- A lesser-offense instruction is required only when the lesser offense is included within the charged offense and the evidence would allow a jury to reasonably find the defendant not guilty of the greater offense but guilty of the lesser.
- When the evidence fairly presents an “either/or” choice (for example, intercourse by force versus full consent) and does not support a middle finding that fits only the lesser offense, a court may refuse to instruct on the lesser offense.
- Separate convictions for rape and kidnapping are not barred simply because both crimes arise from the same encounter; the question is whether the restraint or removal supporting kidnapping has independent significance beyond what is necessary to complete the sexual assault.
- Kidnapping may be punished separately when the victim is removed to another location or restrained in a way that meaningfully increases the victim’s danger or meaningfully exceeds the restraint used to accomplish the rape.

## Conclusion

State v. Collier affirmed rape and kidnapping convictions where the victim testified she was lured into the defendant’s car by a promised restaurant trip and then forced to submit under threat of a knife, while the defendant claimed consent; the court found no basis for a sexual-battery instruction given the proof and permitted separate convictions because the kidnapping conduct was not merely incidental to the rape.


State v. Collier, 1979 WL 209245 (1979)