Court Tosses One Conviction in Kidnapping Case

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Byline: Greg Bolt The Register-Guard

A state appeals court has thrown out one of the kidnapping convictions against a man who grabbed a Santa Clara girl off the street in 2009 and sexually assaulted her, a decision that could require him to be brought back to Eugene for resentencing.

The ruling last week by a three-member panel of the Oregon Court of Appeals means Malcolm Michael Gerlach, now 30, could face a reduced sentence in a case that stunned the community both for the brazen daylight kidnapping of the 10-year-old girl and her subsequent rescue by police. But it's unlikely to allow Gerlach, who was sentenced to 130 years in prison, ever to be released.

At most, the ruling isn't expected to knock more than 30 years off Gerlach's sentence. Even if that happens, it's still virtually certain he will live out his life in prison. However, the state attorney general's office announced this week that it will appeal the ruling to the state Supreme Court. That will put the question of resentencing on hold until the high court hears the case and issues a ruling, which could take as long as a year.

At issue in the appeal is whether Gerlach committed two kidnappings, one when he snatched the girl off the street after knocking her off her bike with a car and the second when he fled from the remote area where he took the girl to rape her. That's when police spotted his car, chased him and then forced him to crash, allowing officers to rescue the girl.

A Lane County jury convicted Gerlach, a drifter who had been living in Douglas County, of three counts of first-degree kidnapping and one count each of first-degree rape, first-degree sodomy, first-degree sexual abuse, second-degree assault and other lesser charges. At sentencing, Lane County Circuit Judge Debra Vogt ruled that one of the three kidnapping charges should be merged with the others because it simply alleged a different theory of the crime rather than a separate act.

But she held that Gerlach committed kidnapping twice by taking the girl to one location - where he got out of the driver's seat, got into the back seat with the girl to assault her and then got back in the driver's seat - and then fleeing a second time. …