State v. Robinson ( 1978 )

Roe, J.

(dissenting) — One is guilty of unlawful imprisonment who "knowingly restrains another person." RCW 9A.40.040. The statutory language at issue is as follows:

"Restrain" means to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with [her or] his liberty.

(Italics mine.) RCW 9A.40.010(1). In this context "substantially" must have a broader meaning than "actual" or "real." Had the word been omitted from the definition of "restrain," the interference contemplated would still have to be actual or real to constitute a felony. Penal statutes are construed strictly against the State, State v. Thompson, 38 Wn.2d 774, 779, 232 P.2d 87 (1951). To say that the interference need merely be real to constitute a felony fails to give effective credence to "the serious nature of the act" which the majority notes that the legislature contemplated when it defined "restrain"; instead, the qualifier is demoted to surplusage.

Just because one can imagine quite petty acts (e.g., the prankster in the elevator) which this statute does not embrace does not mean that' everything more serious must be covered. Without attempting to say what precisely should have been charged against this defendant, it seems clear that the actual grabbing and attempted pulling which he did (as distinguished from the fact that he was unlawfully touching his victim) was not so important, in the entire context of his actions, to define the crime he was committing. The felony of unlawful imprisonment has a definite function as a lesser offense than second-degree kidnapping, but it requires something more than mere assault by gripping and pulling.

Neither case cited in the majority's footnote 1 supports its position; rather, both held that something quite considerable was within the meaning of "substantial." State v. Pahl, 254 Minn. 349, 95 N.W.2d 85 (1959), involved a taking of 18 1/2 percent of a building, which the State argued was not substantial. Since that part taken was the front 35 feet of the building, including the display room, office space, lunchroom, and "heating and plumbing components," leaving nothing but "bare warehousing," the taking was held substantial as a matter of law. Temple v. Mitchell, 180 S.W.2d 959 (Tex. Civ. App. 1944), found that a substantial nuisance existed, even without a physical invasion, because plaintiff's home was 2,700 feet downwind from a sewage treatment plant which emanated odors and sewer flies. In any event, such civil cases do not compel the majority's conclusion in this criminal case.

Let there be no mistake: the facts as stated would quite adequately support a conviction on some charge, but that is not a sufficient reason to affirm a conviction for the wrong crime. Accordingly, I respectfully dissent.

Reconsideration denied September 18, 1978.

Review granted by Supreme Court February 2, 1979.