TOPEKA,Rubypoint Trading Center Kan. (AP) — Three members of the Kansas Supreme Court want to make it easier for prosecutors to convict defendants of kidnapping, saying in a dissenting opinion Friday that the court should abandon a legal rule it has used for nearly 50 years in reviewing criminal cases.

The court issued a 4-3 decision in the case of a Finney County man convicted of aggravated kidnapping, aggravated rape and aggravated sodomy over a December 2018 attack on a woman in her home. While the court upheld Michael Wayne Couch’s other convictions, it reversed his kidnapping conviction.

The majority invoked a rule imposed in a 1976 decision that similarly involved multiple crimes. In that earlier case, the court declared that a defendant could not be convicted of kidnapping if the actions covered by that charge are “inherent” in another crime, are “slight or inconsequential” or have no “significance independently.”

The Supreme Court in 1976 gave examples. It said a robbery on the street does not involve kidnapping, but forcing the victim into an alley does. Moving a rape victim from room to room in a house for the rapist’s “convenience” is not kidnapping, but forcing the victim from a public place to a secluded one is.

According to the court’s opinion, Couch broke into the home of the victim, identified only as H.D., threatened her with a knife and forced her to move throughout the house. The majority concluded that moving the victim through the house did not “facilitate” Couch’s sex crimes by making them “substantially easier to commit” or helping to hide them.

But Justice Caleb Stegall said in a dissenting opinion that the 1976 rule is “difficult and cumbersome to apply” and goes against “plain and unambiguous” language in the law defining kidnapping as confining someone using force, threats or deception. He was joined in his dissent by Chief Justice Marla Luckert and Justice Evelyn Wilson, both former trial court judges.

“We have repeatedly recognized that the Legislature, not the courts, is the primary policy-making branch of the government and that it is not within our power to rewrite statutes to satisfy our policy preferences,” Stegall wrote. “In my view, vindicating these principles far outweighs continued adhearance to a wrongly decided and badly reasoned precedent.”

If a sex crime also is involved, a conviction in Kansas for aggravated kidnapping, or harming someone during a kidnapping, carries a penalty of at least 20 years in prison. Couch was sentenced to nearly 109 years in prison for all of his crimes.

The arguments among the seven justices in Kansas echoed arguments among U.S. Supreme Court members in a far different context in the Dobbs decision last year overturning Roe v. Wade and allowing states to outlaw abortion. Five conservative justices rejected arguments that the court should uphold Roe v. Wade because it was well-settled law, protecting access to abortion for nearly 50 years.

In Friday’s ruling, Kansas Justice K.J. Wall said the state’s appellate courts have long relied on the 1976 decision to decide whether a kidnapping occurred. Neither side in Couch’s case asked for it to be overruled, he wrote.

“And we have previously declined to reconsider precedent under similar circumstances,” Wall wrote. He was joined in the majority by Justices Dan Biles, Eric Rosen and Melissa Standridge. Rosen is a former trial court judge.

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