from the Superior Court in Maricopa County No.
CR2016-005832-001 The Honorable Christine E. Mulleneaux,
Judge Pro Tempore
Arizona Attorney General's Office, Phoenix By Michelle
Hogan Counsel for Appellee
Janelle A. Mc Eachern, Attorney at Law, Chandler By Janelle
A. Mc Eachern Counsel for Appellant
Diane M. Johnsen delivered the opinion of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena
We address in this case a kidnapping conviction based on a
restraint of no more than 30 seconds and compelled movement
of a mere five steps. Based on the broad language of the
statute and case authorities construing it, we affirm.
AND PROCEDURAL BACKGROUND
Matthew Aaron Dutra entered a sandwich shop and walked to the
end of the counter, where he stood face-to-face with a
16-year-old employee stationed across the counter at the cash
register. Brandishing a stun gun, he activated its electric
arc and demanded that the employee give him "the
money." In response, the employee took three steps back
from the counter, but stopped short of a doorway that led
into a closed employee-only area directly behind her. Then,
in response to Dutra's command and use of the stun gun,
she took two steps forward and reached for the cash register.
With the register open, Dutra grabbed for some of the bills
in the drawer, and the employee handed him the rest. A
security video showed that Dutra left the store within 30
seconds of confronting the employee.
A man sitting in his car in front of the restaurant saw Dutra
as he fled on foot. The man lost sight of Dutra as he ran
toward the street, but then he heard screeching tires. Police
received separate reports of an armed robbery and a
hit-and-run accident. Officers found Dutra injured, lying in
the street not far from the restaurant. He was wearing
clothing resembling that worn by the figure in the security
video, and police found a stun gun nearby him on the street.
At the hospital, authorities discovered cash in Dutra's
pocket in the same denominations taken from the restaurant.
A grand jury indicted Dutra on charges of armed robbery, a
Class 2 felony; aggravated assault, a Class 3 felony; and
kidnapping, a Class 2 felony. At the close of the State's
case-in-chief, Dutra moved for a directed verdict on the
kidnapping charge, arguing the State had presented no
evidence he restrained the victim as required by the
kidnapping statute. The State countered that Dutra used a
threat of force and commands to restrain the victim by
confining her behind the counter and then compelling her to
move forward and open the cash drawer. The court denied the
I do find that [the victim] was - that she in this particular
situation that she was interfered with substantially. Her
person - her personal liberty. She wasn't free to move.
The jury convicted Dutra of each of the charged offenses.
Because armed robbery, kidnapping and aggravated assault
involving the threatening exhibition of a dangerous
instrument are violent or aggravated felonies within the
meaning of Arizona Revised Statutes ("A.R.S.")
section 13-706(F) (2018), and because Dutra had two prior
convictions for felonies within the same category and
committed on different occasions within the prior 15 years,
the court imposed three concurrent mandatory sentences of
life in prison with no possibility of release for 35 years.
See A.R.S. § 13-706(B), (F)(2) (enumerating
Dutra timely appealed, and his counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738
(1967), and State v. Leon, 104 Ariz. 297 (1969),
after searching the record on appeal and finding no arguable,
non-frivolous question of law. See Smith v. Robbins,
528 U.S. 259 (2000); Anders, 386 U.S. at 744;
State v. Clark, 196 Ariz. 530 (App. 1999). Dutra was
given the opportunity to file a supplemental brief but did
not do so. Counsel then asked this court to search the record
for fundamental error.
After reviewing the entire record, we requested supplemental
briefing under Penson v. Ohio,488 U.S. 75 (1988),
about whether the evidence supported Dutra's kidnapping
conviction. We have jurisdiction under Article 6, Section 9,
of the Arizona Constitution, and A.R.S. ...