Nebraska Revised Statute 28-313
(1) A person commits kidnapping if he abducts another or, having abducted another, continues to restrain him with intent to do the following:
(a) Hold him for ransom or reward; or
(b) Use him as a shield or hostage; or
(c) Terrorize him or a third person; or
(d) Commit a felony; or
(e) Interfere with the performance of any government or political function.
(2) Except as provided in subsection (3) of this section, kidnapping is a Class IA felony.
(3) If the person kidnapped was voluntarily released or liberated alive by the abductor and in a safe place without having suffered serious bodily injury, prior to trial, kidnapping is a Class II felony.
- Laws 1977, LB 38, § 28.
2. Voluntary release
This section creates a single criminal offense and not two separate offenses, even though it is punishable by two different ranges of penalties depending on the treatment accorded to the victim. The factors which determine which of the two penalties under this section is to be imposed are not elements of the offense of kidnapping, and their existence or nonexistence should properly be determined by the trial judge. Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), is concerned only with cases involving an increase in penalty beyond the statutory maximum and does not apply to the mitigating factors in this section. State v. Becerra, 263 Neb. 753, 642 N.W.2d 143 (2002).
Pursuant to subsection (3) of this section, kidnapping as a Class II felony is not a separate offense from kidnapping as a Class IA felony. The provisions of subsection (3) of this section are only mitigating circumstances which may reduce the penalty for kidnapping, and the existence or nonexistence of the mitigating circumstances is a matter properly considered by the court at sentencing, not the jury. State v. Becerra, 253 Neb. 653, 573 N.W.2d 397 (1998).
In the absence of a statutory definition, terrorize in subsection (1)(c) of this section means to fill with terror, scare, frighten, markedly disturb with fear, throw into a state of alarm, make afraid, or terrify. State v. Robbins, 253 Neb. 146, 570 N.W.2d 185 (1997).
The specific intentions specified in subsections (1)(a) through (e) of this section apply both to the act of abducting and to the act of continued restraint after having already abducted another. One commits kidnapping if one either abducts another with one or more of the intentions specified in subsections (1)(a) through (e) of this section, or abducts another without any of those intentions, but forms one or more of them while continuing to restrain the abducted person. Proof of the intent required for subsections (1)(a) through (e) of the crime of kidnapping, as defined by this section, requires proof of something more than the abduction. State v. Robbins, 253 Neb. 146, 570 N.W.2d 185 (1997).
The purpose of kidnapping in every instance is to make it possible to commit some other crime. One may not erase the commission of a crime simply because, after committing it, a second crime is committed. State v. Schmidt, 213 Neb. 126, 327 N.W.2d 624 (1982).
The Nebraska kidnapping statute defines only a single criminal offense which is punishable by two different ranges of penalties depending on the treatment accorded the victim. State v. Schneckloth, Koger, and Heathman, 210 Neb. 144, 313 N.W.2d 438 (1981).
2. Voluntary release
The victim's ability to effectuate an escape despite being bound and gagged does not equate with a voluntary release under subsection (3) of this section. State v. Betancourt-Garcia, 295 Neb. 170, 887 N.W.2d 296 (2016).
Rescue is not a voluntary release of a kidnapping victim to establish a mitigating factor under subsection (3) of this section. State v. Pittman, 285 Neb. 314, 826 N.W.2d 862 (2013).
Kidnapping is not a lesser-included offense of first degree sexual assault, nor is sexual assault a lesser-included offense of kidnapping; it is not impossible to commit one of these crimes without having committed the other. State v. Maeder, 229 Neb. 568, 428 N.W.2d 180 (1988).
Sections 28-313 and 28-314 define separate offenses. State v. Miller, 216 Neb. 72, 341 N.W.2d 915 (1983).
The district court did not abuse its discretion in sentencing the defendant to forty years for aiding and abetting kidnapping where sentence was well within the statutory limits, whether crime was classified as a Class IA or Class II felony, and the court had correctly considered that the victims were not voluntarily released and one victim had been raped, though defendant was not convicted of aiding and abetting the rape. United States v. Gomez, 733 F.2d 69 (8th Cir. 1984).