Have you or your loved one been charged with the above-reference offense? If so, call Attorney Scambio for a free consultation at 508-796-5737.
The Massachusetts Legislature defines Aggravated Kidnapping while being armed with a dangerous weapon and inflicting a serious bodily injury upon another under Massachusetts General Law Chapter 265, §26 as follows:
Section 26. Whoever, without lawful authority, forcibly or secretly confines or imprisons another person within this commonwealth against his will, or forcibly carries or sends such person out of this commonwealth, or forcibly seizes and confines or inveigles or kidnaps another person, with intent either to cause him to be secretly confined or imprisoned in this commonwealth against his will, or to cause him to be sent out of this commonwealth against his will or in any way held to service against his will, shall be punished by imprisonment in the state prison for not more than ten years or by a fine of not more than one thousand dollars and imprisonment in jail for not more than two years. Whoever commits any offence described in this section with the intent to extort money or other valuable thing thereby shall be punished by imprisonment in the state prison for life or for any term of years.
Whoever commits any offense described in this section while armed with a firearm, rifle, shotgun, machine gun or assault weapon shall be punished by imprisonment in the state prison for not less than ten years or in the house of correction for not more than two and one-half years. The provisions of the preceding sentence shall not apply to the parent of a child under 18 years of age who takes custody of such child. Whoever commits such offense described in this section while being armed with a firearm, rifle, shotgun, machine gun or assault weapon with the intent to extort money or other valuable thing thereby shall be punished by imprisonment in the state prison for life or for any term of years but not less than 20 years.
Whoever commits any offense described in this section while armed with a dangerous weapon and inflicts serious bodily injury thereby upon another person or who sexually assaults such person shall be punished by imprisonment in the state prison for not less than 25 years. For purposes of this paragraph the term ”serious bodily injury” shall mean bodily injury which results in a permanent disfigurement, protracted loss or impairment of a bodily function, limb or organ or substantial risk of death. For purposes of this paragraph, the term ”sexual assault” shall mean the commission of any act set forth in sections 13B, 13B1/2, 13B3/4, 13F, 13H, 22, 22A, 22B, 22C, 23, 23A, 23B, 24 or 24B.
Whoever, without lawful authority, forcibly or secretly confines or imprisons a child under the age of 16 within the commonwealth against his will or forcibly carries or sends such person out of the commonwealth or forcibly seizes and confines or inveigles or kidnaps a child under the age of 16 with the intent either to cause him to be secretly confined or imprisoned in the commonwealth against his will or to cause him to be sent out of the commonwealth against his will or in any way held to service against his will, shall be punished by imprisonment in the state prison for not more than 15 years. The provisions of the preceding sentence shall not apply to the parent of a child under 16 years of age who takes custody of such child.
The Commonwealth must prove each of the following elements beyond a reasonable doubt at trial:
First: That the defendant was without lawful authority;
Second: That the defendant forcibly or secretly confined or imprisoned another person within the Commonwealth against his will;
Third: That the defendant committed the offense against the other person’s will; and
Fourth: That the defendant committed the offense while armed with a dangerous weapon and inflicted serious bodily injury on the alleged victim or sexually assaulted the alleged victim.
The first element the Commonwealth must prove beyond a reasonable doubt is that the defendant was acting without lawful authority. An act taken under lawful authority means that it was authorized, sanctioned, or allowed by law. An act is taken without lawful authority if it is not authorized by law.
The second element the Commonwealth must prove beyond a reasonable doubt is that the defendant forcibly or secretly confined or imprisoned the alleged victim in Massachusetts. The word “forcibly” means carried out using force. One acts “forcibly” toward another if one compels, constrains, or obliges him/her to do something against his/her will. Force may be either actual or constructive, so there need not be actual physical force applied against the alleged victim; it is sufficient that the alleged victim is subdued by a display of potential force. “Secretly” means to do something without the knowledge of others. “Confine” means to enclose within bounds or to limit, restrict, shut up, or keep in. “Imprison” means to detain in custody or to hold in restraint. Any restraint of a person’s liberty is a confinement or an imprisonment.
The third element the Commonwealth must prove beyond a reasonable doubt is that the defendant committed the offense against the person’s will. “Against his will” means that the victim did not consent to be seized, confined, imprisoned, carried, sent, or kidnapped by the defendant. A person’s submitting because of fear is not consent.
The fourth element the Commonwealth must prove beyond a reasonable doubt is that the defendant committed the offense of kidnapping, as described above, while armed with a dangerous weapon and inflicted serious bodily injury on the alleged victim or sexually assaulted the alleged victim. If the alleged weapon is not inherently dangerous, you must determine if it is a dangerous weapon. An item that is normally used for innocent purposes can become a dangerous weapon if it is intentionally used as a weapon in a dangerous or potentially dangerous fashion.
Therefore, you must believe beyond a reasonable doubt that, where the weapon was not inherently dangerous, the defendant used it as a weapon with the intent to use it in a dangerous or potentially dangerous fashion. The law considers any item to be a dangerous weapon if it is intentionally used in a way that it reasonably appears to be capable of causing serious injury or death to another person.
For example, a lighted cigarette can be a dangerous weapon if it is used to burn someone, as is a pencil, if it is aimed at someone’s eyes. In deciding whether an item was intentionally used as a dangerous weapon, you may consider the circumstances surrounding the alleged crime; the nature, size, and shape of the item; and the way it was handled or controlled. “Serious bodily injury” means bodily injury which results in a permanent disfigurement; protracted loss or impairment of a bodily function, limb, or organ; or substantial risk of death.
If you have been charged with this offense and need a trial attorney with real trial experience and trial solutions, or if you have any questions related to this criminal offense, call Attorney Scambio today at 508-796-5737. Remember, before you decide whether to make any statements to law enforcement, discuss that decision with a competent attorney. Attorney Scambio is available six (6) days a week and will take your call to discuss assisting you in your criminal matter.