Since Colorado lawmakers created the crime of kidnapping five decades ago, it has included a simple set of circumstances: seizing and carrying a person from one place to another without consent.

The state Supreme Court is now being asked to determine whether a Gilpin County judge, along with other trial courts, mutated the criteria for finding someone guilty while attempting to define kidnapping. Specifically, the justices must decide whether describing the act of seizing and carrying someone as “any movement, however short in distance” was a mistake requiring the reversal of Nicholas Garcia’s conviction.

“Presumably you can move someone three inches,” observed Justice Richard L. Gabriel at oral arguments on Monday. “That’s however small, and that’s not from place to place.”

Garcia’s original case reflected two different accounts of what occurred after he and his sons met their victim at a Black Hawk casino. According to the victim, he met Garcia’s group and they agreed to smoke marijuana at a cemetery. When the victim could not find the cemetery, the group put him in a headlock, assaulted him, took his possessions and drove him to Denver. While parked in an alley, the victim attempted to flee, but the men caught him, forced him into the car and drove off again. He eventually escaped.

In Garcia’s telling, everyone voluntarily rode in the car to Denver to purchase methamphetamine. Upon reaching Denver, Garcia got out and obtained meth for the victim. But driving away, the victim grew upset and punched Garcia. One of Garcia’s sons stopped the car and told everyone to get out, and Garcia’s group assaulted the victim in an alley. They then drove off.

Prosecutors charged Garcia with kidnapping, robbery, assault and menacing. During jury deliberations, District Court Judge Dennis J. Hall received a question from the jurors, suggesting they were considering both the victim’s account of being forced back into the car after an escape attempt as well as Garcia’s claim about a brief fight in the car before ejecting the victim.

“What are the parameters of kidnapping,” the jury asked. “Is it kidnapping if a person is put back in a car? Is it kidnapping if they are dumped and left behind?”

Hall, citing a prior court case involving kidnapping, decided to tell the jury that seized and carried meant “any movement, however short in distance.”

The defense objected, arguing that the judge’s definition significantly changed the elements of the crime. Instead of requiring the jury to find the victim had been both confined and transported, all they now had to do was determine if there was any movement.

The jury convicted Garcia on all counts.

In August of last year, a panel of the Court of Appeals found Hall’s instruction to be reasonable, mirroring other previous decisions. In the 2-1 ruling, Judge Jaclyn Casey Brown dissented, believing “any movement, however short” would incorrectly label the act of ejecting someone from a car as kidnapping, without any reference to being seized and carried. Therefore, she would have reversed Garcia’s kidnapping conviction because the trial court had lowered the prosecution’s burden of proof.

On appeal to the Supreme Court, Garcia described that the legislature created the kidnapping offense in 1971 to essentially combine false imprisonment with movement from place to place. A 1964 report to the General Assembly explained that the new offense would cover a “normal case of kidnaping where the victim is overpowered and is lifted or forced at gun point to an awaiting car.”

However, the defense argued, courts have since engaged in a “game of telephone” about the definition, culminating in the instruction that any movement constitutes kidnapping. To complicate matters, other Court of Appeals panels have endorsed the notion that any movement, however short must also result in a “substantial increase” in the risk of harm to a victim.

Some members of the Supreme Court were sympathetic to the notion that such an explanation from Hall in response to the jury’s specific question was improper.

“I don’t understand how a definition of two verbs, seize and carry, can be any movement, however small,” Justice Melissa Hart acknowledged on Monday. “And if I were on the jury I would’ve been super confused by that statement.”

Gabriel said that the jury’s note did not even request a definition of seized and carried, and yet that was the question Hall had answered.

“The jury didn’t ask what the meaning of that is in this case,” public defender Jud Lohnes agreed, “but when the jury does ask, telling them it means any movement, however short in distance is always the wrong answer.”

Senior Assistant Attorney General Ellen Michaels asked the justices to uphold Hall’s instruction, even though it could have been phrased more clearly. She elaborated that even under Garcia’s account, the victim was still driven several blocks while fighting with other people in the car, and was ultimately ejected. That would have qualified as being seized and carried.

Gabriel pushed back, saying Michaels’ interpretation would deem as kidnapping any scenario in which the victim was voluntarily in a car before being pushed out. In that instance, there is no seizure.

“That’s the problem,” he said.

The case is Garcia v. People.