GUILTY NH - Abby Hernandez, 14, North Conway, 9 Oct 2013 - #15

[Not Without Peril]

ITA.
With regard to the investigation concerning charges and evidence being in it's earliest stages I would like to point out that the charge Kibby is facing right now only relates to the date of October 9, On NS Road as stated in the complaint. That single charge is very clearly stated. The full reading of the complaint by the Judge at the arraignment;

"The charge is a class B felony...The allegation is that you have committed the offense of kidnapping on October 9th of two thousand thirteen and that the location of that offense was on the North South Road in Conway New Hampshire. The allegation is that you knowingly confined AH, with a date of birth of 10/12/1998, with the purpose to commit an offense against her. The felony means that if you are convicted you will be sent to the New Hampshire State Prison for a period not to exceed 7 years, you can be ordered to pay a fine of up to $4000, and you will be placed on probation for up to 5 years."

http://www.wmur.com/news/raw-video-...abby-hernandez-disappearance/27209250#!bBxxZ2

DNA, forensics and other evidence being collected at the mobile home will be related to whatever other charges that evidence warrants and Not the incident on North South Road on 10/9.


ETA: Jane Young's statement after the arraignment;

"As we indicated, this arrest is the first step in this case. As the complaint indicates Abby was kidnapped here in Conway. As you are all aware searches are ongoing right now at Mr. Kibby's residence. If there is additional evidence that other crimes [were] committed those charges will be brought.

http://www.wmur.com/news/raw-video-...ence-after-kibby-arraignment/27209634#!bBBkPv

:moo:

Well, Kibby (quite literally) could not have confined Hernandez during her period of confinement.

In any event, Kibby is charged with kidnapping as a class B felony, based on the fact that he voluntarily released Hernandez in a safe place. That release, of course, occurred the day that she returned home (he did not "release" her into his trailer or the the container).

 

[Steleheart]

Well, Kibby (quite literally) could not have confined Hernandez during her period of confinement. In any event, Kibby is charged with kidnapping as a class B felony, based on the fact that he voluntarily released Hernandez in a safe place. That release, of course, occurred the day that she returned home (he did not "release" her into his trailer or the the container).

Could you explain why you think that Kibby could not have confined her during her confinement? Did something prevent him? And if she was confined who, then, could have confined her?

TIA

 

[Not Without Peril]

Could you explain why you think that Kibby could not have confined her during her confinement? Did something prevent him?

In a literal sense, the fact that she was confined is something that would prevent him from confining her. (In a legal sense; Double Jeopardy requires multiple convictions for the same offense to be based on independent acts).

Now, could you explain this: Although you have stated that "the charge Kibby is facing right now only relates to the date of October 9," in fact, Kibby's charge also relates to Abigail's release into a safe place (i.e., when she returned home). Therefore, Kibby is charged with confining Abigail for nine months. He could not have confined and released her into some other state of confinement during that time; and, even if he could have in some philosophical sense, he will not be charged with these hypothetical intermediate "acts" of confinement because those theoretical convictions would be unconstitutional.

 

[Not Without Peril]

I forgot this one: "And if she was confined who, then, could have confined her?"

In a literal sense, no one. Because she was confined.

 

[Not Without Peril]

How do you burn something that's on fire?

 

[AnaTeresa]

I forgot this one: "And if she was confined who, then, could have confined her?"

In a literal sense, no one. Because she was confined.

Oh for goodness sake. The definition of confine is: (1) to enclose within bounds; limit or restrict; (2) to shut or keep in; prevent from leaving a place because of imprisonment, illness, discipline, etc. (per dictionary.com).

Per NH 633.1, a person is guilty of kidnapping if he knowingly confines another under his control.

If someone asks who is confining Abby, there's no need to go round in some sort of philosophical debate. It's clear what the poster is saying. You are making this more convoluted than necessary.

 

[east2west]

Could this have started off as not a confinement, possibly some type of relationship but as the months passed, NK became controlling and thus the confinement?

It's just a scenario that's been banging around my head since her return. jmho

 

[PoirotryInMotion]

I have to say that DNA evidence Abby was there is very strong proof. LE has mentioned many times that as a child she didn't have the means to take care of herself. Maybe NK *could* claim he didn't know that Abby was hiding in his storage container, but that is problematic because Abby had other needs, like warmth in the winter and food and bathroom needs. And how did she get into his storage container, some 30 miles from where she was last seen? I do not see that as any kind of plausible argument for the defense

It's been confirmed that the storage container had electricity. There is a strong likelihood it also had supplies of food, water, and portapotty if it were a bunker-style unit. A lot of people put together doomsday units like this around the Y2K crisis; it would not surprise me in the least if NK was one of those people (not that he did it in 1999, but later). A neighbor, remember, was taken on a tour of the container by NK - it wasn't just some empty steel container. How she got there is something the State would have to prove; at her age I hiked 25 miles in 8 hours one day, easy, raising money for a cause. It's not inconceivable that she could walk there if she didn't hitch a ride. The storage container has a door facing the trailer (see diagram a few pages back that Radichio77885 supplied). We don't know if that door was routinely locked or not, being an outside storage unit. (We don't lock our outdoor storage.) It's not implausible (yet) to me, based on what we know so far. JMO I do think she must have had at least a small supply of alternate clothing, though. I seem to remember LE back and forth over whether or not she returned home before disappearing after school--that could be one explanation; there may be others. That is something else that will come out in court definitively.

 

[Steleheart]

In a literal sense, the fact that she was confined is something that would prevent him from confining her. (In a legal sense; Double Jeopardy requires multiple convictions for the same offense to be based on independent acts).

Now, could you explain this: Although you have stated that "the charge Kibby is facing right now only relates to the date of October 9," in fact, Kibby's charge also relates to Abigail's release into a safe place (i.e., when she returned home). Therefore, Kibby is charged with confining Abigail for nine months. He could not have confined and released her into some other state of confinement during that time; and, even if he could have in some philosophical sense, he will not be charged with these hypothetical intermediate "acts" of confinement because those theoretical convictions would be unconstitutional.

Yes, the charge and thus the sentence it carries only relates to the kidnapping which occurred on Oct 9. Kidnapping is single charge regardless of duration. Since we know she was 'released' on 7/20 then the entire 9 months is the duration of the single charge. He cannot be charged with 286 daily counts of kidnapping. If you had said Kibby quite literally, could not have kidnapped her during her confinement it would have been more clear.

Under RSA 133: Interference With Freedom, there are other categories that could result in additional charges with respect to those actions arising out of the confinement. For instance 133:7 Trafficking in Persons, which could include labor, services, commercial sex acts, or sexually explicit performances. not just commercial sex acts. All of the charges can include threatening, enticing, restraining, etc and not just physical restraint.

http://nhrsa.org/law/chapter/633/

Hey but I am just a Janitor and not verified either.

:cow:

 

[Steleheart]

S&R, S&R, S&R...


:giggle:

 

[Not Without Peril]

It's clear what the poster is saying. You are making this more convoluted than necessary.

Here is the question: "Could you explain why you think that Kibby could not have confined her during her confinement?"

What is your answer?

 

[white rabbit]

o/t rest in peace, robin williams.

so sad...

 

[gnomony]

The charge against NK is what the prosecution came up with immediately and with very little preparation on the day they discovered he was their man. It's consistent with what they think they might be able to prove, and serious enough to get him off the street -- and that was all they needed. My guess is that, if NK actually did hold AH for 9 months, there will be dozens of other things that they can charge him with.

After reading about NK, learning of his interactions with LE, and reading his swaggering letters to the editor, I get a picture of someone about whom a thorough investigation could turn up all kinds of stuff. IMJ, they could well end up charging him with additional crimes that have nothing to do with AH.

With that idea in mind, I expect we're going to hear some more shoes drop. I'm guessing that some of the NK headlines this fall will be about things that haven't yet been discussed on WS.

Popcorn?

 

[liljim]

<modsnip> by stating that the crime of kidnapping occurred at that time and date and on north/south rd. does that rule out any sort of "she went with him willingly at first" scenario?

im not saying that i think that happened in any way, but it is one of the more widely speculated on theories and im wondering if it can be ruled out by the specific nature of the charge.

 

[PoirotryInMotion]

I'm no lawyer type, but will offer my guess that the charge starts on that date/place because that is the beginning of when she disappeared (either picked up by him or another, or 'enticed' by him to leave home, etc., etc.). This kidnapping charge as I understand it occurs from the outset regardless of the willingness of a minor who's allegedly been kept/concealed from her parents. IOW, kidnapping doesn't necessarily mean 'snatched.'

 

[Not Without Peril]

hey lawyer people by stating that the crime of kidnapping occurred at that time and date and on north/south rd. does that rule out any sort of "she went with him willingly at first" scenario?

im not saying that i think that happened in any way, but it is one of the more widely speculated on theories and im wondering if it can be ruled out by the specific nature of the charge.

"To 'confine' means 'to hold within bounds,' or 'restrain from exceeding boundaries.'" State v. Gibbs, 58 A. 3d 656, 658 (2012), quoting Webster's Third New International Dictionary 476 (unabridged ed.2002). See, also, id. ("[T]he generally accepted principle [is] that a defendant may not be charged multiple times for a crime of interfering with another person's freedom &#8212; such as kidnapping or criminal confinement &#8212; unless the victim has been freed and subsequently restrained again.").

Accordingly, in New Hampshire, to "confine" a person means to limit that person's ability to move about freely. See id. If Abigail had the choice to refrain from going with Kibby, she would not have been "confined." See id.

 

[PoirotryInMotion]

"To 'confine' means 'to hold within bounds,' or 'restrain from exceeding boundaries.'" State v. Gibbs, 58 A. 3d 656, 658 (2012), quoting Webster's Third New International Dictionary 476 (unabridged ed.2002). See, also, id. ("[T]he generally accepted principle [is] that a defendant may not be charged multiple times for a crime of interfering with another person's freedom &#8212; such as kidnapping or criminal confinement &#8212; unless the victim has been freed and subsequently restrained again.").

Accordingly, in New Hampshire, to "confine" a person means to limit that person's ability to move about freely. See id. If Abigail had the choice to refrain from going with Kibby, she would not have been "confined." See id.

BBM

So, to answer liljim's question...because Abby is a minor, she technically, in the eyes of the law, doesn't have that choice to go willingly or not.

 

[liljim]

BBM

So, to answer liljim's question...because Abby is a minor, she technically, in the eyes of the law, doesn't have that choice to go willingly or not.

hmm i didnt think he was saying that at all, lol - maybe he can clarify.

i thought he was saying yes to my question, which is they would not have charged him that way if they believed she willingly went with him that day on the street.

 

[PoirotryInMotion]

That's what I'm trying to get him to clarify. I think the key might be in the word 'enticed'--and the fact that a minor can appear to go willingly with an alleged kidnapper due to enticement. And because of that immaturity, the minor is not viewed (legally) as 'going willingly' but as going under trickery/enticement.

Waiting for him to chime in here, though...

 

[PoirotryInMotion]

An example that comes to mind, liljim, is the case of a non-custodial parent kidnapping their child (which would also be a Felony B kidnapping if returned unharmed prior to trial). As I understand it, the child may go willingly with the non-custodial parent--but it's irrelevant. It is still considered kidnapping from the moment the child is illegally enticed away or taken, not the moment the child is locked up/confined in a room somewhere. The child would be 'enticed' through no fault of his own being as how he doesn't understand the nuances of the law--he just hears one parent say let's go somewhere and he cooperates because he loves his parent or has been taught to obey him, etc.