State Of Washington, V. Kevin James Perkins ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 82291-8-I
)
Respondent, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
KEVIN JAMES PERKINS, )
)
Appellant. )
)
HAZELRIGG, J. — Kevin J. Perkins appeals from a conviction for kidnapping
in the second degree and assault in the fourth degree after a jury trial. He contends
there is insufficient evidence to sustain his kidnapping conviction, that his assault
conviction violates double jeopardy, and that the court erred in calculating his
offender score. Because there is insufficient evidence to demonstrate a completed
kidnapping in the second degree, we remand for vacation of that conviction and
entry of judgment for attempted kidnapping in the second degree. Further, we
remand for a recalculation of Perkin’s offender score under Blake.1 We otherwise
affirm the trial court.
FACTS
In September 2018, Kevin Perkins was charged with one count of attempted
kidnapping in the first degree. The State later filed an amended information to add
1 State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021).
Citations and pinpoint citations are based on the Westlaw online version of the cited material.
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a sexual motivation aggravator and a second count of attempted indecent liberties
in the first degree. He was tried before a jury, who returned a guilty verdict on two
lesser-included offenses: kidnapping in the second degree (with no aggravator)
and assault in the fourth degree.2 Perkins was sentenced to 84 months
imprisonment for count one, and 364 days for count two, to run concurrently. He
timely appeals.
ANALYSIS
I. Sufficiency
Perkins first argues there is insufficient evidence to convict him of a
completed kidnapping, and instead he should be convicted of attempted
kidnapping in the second degree. He focuses on the element of abduction,
alleging there was insufficient evidence to demonstrate he secreted or hid N.M.
The State bears the burden to prove each element of a crime beyond a
reasonable doubt. State v. Butler, 165 Wn. App. 820, 829, 269 P.3d 315 (2012).
Whether there is sufficient evidence to sustain a conviction is a constitutional
question of law we review de novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d
746 (2016). We view all evidence in the light most favorable to the state to
determine whether “‘any rational trier of fact could have found the essential
elements of kidnapping beyond a reasonable doubt.’” State v. Berg, 181 Wn.2d
2 During trial, Perkins sought a lesser included instruction on attempted kidnapping in the
second degree. The State believed it had elicited sufficient testimony to support a conviction for a
completed kidnapping, but could no longer amend the information to a completed kidnapping in the
first degree, and argued for an instruction on completed kidnapping in the second degree as a
lesser included offense. The trial court, based on the language of the statute, allowed instruction
on kidnapping in the second degree (completed) as a lesser included of attempted kidnapping in
the first degree. Because Perkins did not assign error to this ruling, we do not review it.
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857, 867, 337 P.3d 310 (2014) (quoting State v. Green (Green II), 94 Wn.2d 216,
221–22, 616 P.2d 628 (1980)). We defer “to the trier of fact on issues of conflicting
testimony, credibility of witnesses, and the general persuasiveness of the
evidence.” Butler, 165 Wn. App. at 829. “Circumstantial evidence and direct
evidence are equally reliable.” State v. Briejer, 172 Wn. App. 209, 217, 289 P.3d
698 (2012).
An individual commits kidnapping in the second degree if they “intentionally
abduct[] another person under circumstances not amounting to kidnapping in the
first degree.” RCW 9A.40.030. “Abduct” is defined as restraining another person
“by either (a) secreting or holding him or her in a place where he or she is not likely
to be found, or (b) using or threatening to use deadly force.” RCW 9A.40.010. The
trial court’s instructions to the jury defined “abduct” as “to restrain a person by
secreting or holding the person in a place where that person is not likely to be
found.”
In considering whether a victim was secreted, we carefully examine “the
setting of events and the physical surroundings.” Green II, 94 Wn.2d at 226. For
example, in State v. Stubsjoen, our court held there was sufficient evidence to
sustain a kidnapping conviction despite the fact that the child victim was held “in
public areas where the child could easily be seen” “virtually all of the time” the
defendant had the victim. 48 Wn. App. 139, 144, 145–46, 738 P.2d 306 (1987).
Because the defendant acted “as though the child was her own,” the child’s
parent/guardian and law enforcement officers would be unlikely to find the child.
Id. at 145. In Green II, our state Supreme Court found a victim was not secreted
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because the victim’s location was clearly visible “from the outside,” and there was
no evidence “of actual isolation from open public areas.” 94 Wn.2d at 226. In
State v. Billups, this court analyzed sufficiency in the context of an attempted
kidnapping, finding the defendant had taken a substantial step by enticing two
minors to get inside his van. 62 Wn. App. 122, 126–27, 813 P.2d 149 (1991). Had
the victims complied and gotten inside of the van, he “would have been secreting
or holding the girls in a place where they were not likely to be found.” Id. at 127.
The State argues there is sufficient evidence to sustain the conviction for a
completed kidnapping because one of the streets at the intersection where the
incident took place is dark and not frequently travelled, the area is wooded, Perkins
took the victim’s cell phone, and the victim was far enough in the vehicle that her
back was against the center console and her feet were off the ground (although
her legs were outside of the vehicle and the vehicle door was open).
The State’s evidence of the kidnapping largely relies on the victim’s (N.M.)
testimony. N.M. described the intersection and the chronology of the incident in
detail. She went for a run near her home around 10:00 in the evening after telling
her mother she was leaving. She ran along 272nd street after turning around and
heading back toward her home. She testified there was “a light on the road, so it
was not dark,” and that “[l]ots of cars” were driving along the street. As she ran,
she noticed a man (later identified as Perkins) outside his car, which was parked
“by the light” on the side of the road. She noticed he was pretending to fix his tire
but had no tools in his hand; she felt something was wrong and decided to turn
around to avoid him. Perkins ran toward her and grabbed her, carrying her to his
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car as she screamed. A fight ensued as Perkins tried to place N.M. into the car
and she fought back, scratching him and kicking him. Perkins placed N.M. into the
driver’s seat and tried to move her to the passenger side, but N.M. fought to stay
in the driver’s seat with her legs out the open door.
On direct examination, the State asked N.M. numerous questions about her
body position in the car; she testified her “bottom” was on the driver’s seat with her
back facing the passenger side against the center console. Her legs were outside
the vehicle. Later in her testimony, she reiterated that her legs “were not on the
seat,” they were “[h]anging out of the side of the car,” and her feet were off the
ground. Although N.M. testified she did not walk along that route often, she went
on walks or runs with her sister along 272nd street that summer.
Even taking the evidence in the light most favorable to the State, there is
not sufficient evidence to demonstrate N.M. was “secreted” or hidden in a place
she was unlikely to be found. The incident took place along a public road that N.M.
described as being “not dark,” with “lots of cars” driving by. Her mother knew she
had gone out for a run and her sister knew the area as one they had run together.
After Perkins grabbed her, N.M. was never fully in the car; she was able to keep
herself out of the passenger seat and keep her legs outside the vehicle with the
driver’s side door open.
“[W]hen an appellate court finds the evidence insufficient to support a
conviction for the charged offense,” but a lesser offense was proved at trial, “it will
direct a trial court to enter judgment on a lesser degree of the offense.” State v.
Garcia, 146 Wn. App. 821, 830, 193 P.3d 181 (2008). Here, the jury was instructed
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on a variety of lesser-included offenses, including attempted kidnapping in the
second degree. To convict on attempted kidnapping in the second degree, the
State had to demonstrate beyond a reasonable doubt that Perkins took a
substantial step toward the commission of that crime with the intent to commit that
crime. N.M.’s testimony that Perkins grabbed her, placed her in his vehicle, and
attempted to move her to the passenger seat, is sufficient to find a substantial step
toward committing the crime of kidnapping in the second degree with the intent to
do so. Perkins concedes this, and asks this court remand for entry of a conviction
on attempted kidnapping in the second degree. We accept Perkin’s concession
and remand for the entry of an amended judgment.
II. Double Jeopardy
Perkins next contends his convictions violate double jeopardy. He argues
(1) the attempted kidnapping and assault convictions are the same in law and fact,
(2) the assault and attempted kidnapping convictions merge, and (3) the jury
instructions do not sufficiently protect against double jeopardy.
Our state and federal constitutions protect a defendant from suffering
“‘multiple punishments for the same offense.’” State v. Mutch, 171 Wn.2d 646,
661, 254 P.3d 803 (2011) (quoting State v. Noltie, 116 Wn.2d 831, 848, 809 P.2d
190 (1991)).3 We review this question de novo. Id.3 See also U.S. CONST. amend. V; W ASH. CONST. art. I, § 9.
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A. Same in Law and Fact
When a defendant has multiple convictions under different statutes, we
apply the Blockburger4 test to determine if the convictions are “the same in law and
in fact.” State v. Villanueva-Gonzalez, 180 Wn.2d 975, 981, 329 P.3d 78 (2014)
(quoting State v. Adel, 136 Wn.2d 629, 632–33, 965 P.2d 1072 (1998)). “‘If there
is an element in each offense which is not included in the other,’” both convictions
may stand. State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995) (quoting
State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983)).
The State concedes there is no express authorization from our state
legislature authorizing convictions for both kidnapping in the second degree and
assault in the fourth degree.
Kidnapping in the second degree is governed by RCW 9A.40.030, while
assault in the fourth degree is governed by 9A.36.041. As discussed earlier,
kidnapping in the second degree involves intentionally abducting another person
by secreting or holding them in a place where they will not be found or by use or
threat of deadly force. RCW 9A.40.010(1), RCW 9A.40.030(1). Assault includes
(1) an attempt to inflict bodily injury on another, (2) unlawful touching with criminal
intent, and (3) placing another in apprehension of harm. State v. Frohs, 83 Wn.
App. 803, 813, 924 P.2d 384 (1996).
The trial court’s instructions to the jury defined attempted kidnapping in the
second degree as “a substantial step toward the commission of” kidnapping in the
second degree “with [the] intent to commit that crime.” Kidnapping in the second
4 Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
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degree was defined as occurring when an individual “intentionally abducts another
person.” Abduct was defined as “to restrain a person by secreting or holding the
person in a place where that person is not likely to be found.” Restrain was defined
as “to restrict another’s movements without consent and without legal authority.”
The court’s instructions to the jury defined assault as “an intentional touching or
striking of another person that is harmful or offensive regardless of whether any
physical injury is done to the person,” or “an act done with intent to inflict bodily
injury,” or “an act done with the intent to create in another apprehension and fear
of bodily injury.”
The court instructed the jury on attempted kidnapping in the second degree,
and kidnapping in the second degree, as lesser-included offenses of attempted
kidnapping in the first degree. It instructed the jury on assault in the second degree
as a lesser-included offense of attempted indecent liberties. The attempted
indecent liberties, and by extension the assault, was based on Perkins pulling
N.M.’s down leggings several inches. The act of pulling N.M.’s leggings down
several inches was necessary to accomplish “an intentional touching . . . that is
harmful or offensive,” but not necessary to accomplish a substantial step toward
kidnapping. Likewise, kidnapping requires a substantial step toward abduction or
restraining an individual, but assault does not require any abduction or restraint.
On the record before us, Perkins may properly be convicted of an attempted
kidnapping in the second degree based on the substantial steps he took toward
abducting N.M., and of assault in the fourth degree for the offensive touching.
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B. Merger
Likewise, Perkin’s argument that the assault had no purpose other than to
effectuate kidnapping fails. The merger doctrine prohibits “punishment for an
offense which the legislature has clearly intended is not to be punished separately
from the greater offense.” State v. Garcia, 65 Wn. App. 681, 689, 829 P.2d 241(1992). “[S]uch intent has been found where proof of one crime is a necessary
element or constitutes proof of another crime.” Id.The State relied on Perkins’s act of pulling down N.M.’s leggings several
inches to support its allegation of assault in the fourth degree as an offensive
touching. This offensive touching was not required to abduct N.M.—she was
already in Perkin’s vehicle, and there was no evidence the act of pulling down her
leggings three inches was in an effort to abduct or restrain N.M. As such, the
merger doctrine does not preclude conviction on both the attempted kidnapping
and assault charges.
C. Instructional Error
Perkins next alleges the jury instructions were deficient because they did
not prevent the jury from convicting him of both kidnapping and assault based on
the same conduct.
“We review challenges to jury instructions de novo, within the context of the
jury instructions as a whole.” State v. Berg (Berg II), 147 Wn. App. 923, 931, 198
P.3d 529 (2008) (disapproved in part by Mutch, 171 Wn.2d 646). Jury instructions
must make it “manifestly apparent” to the jury that the State may not impose
multiple punishments for the same offense. Id.-9-
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In Mutch, our state Supreme Court found jury instructions were inadequate
where no instruction “expressly stated that the jury must find that each charged
count represents an act distinct from all other charged counts,” and all of the to-
convict instructions “were nearly identical, including that they all indicated the same
time of occurrence of the criminal conduct.” 171 Wn.2d at 662. This was error
despite the fact that the jury was instructed “[a] separate crime is charged in each
count. You must decide each count separately. Your verdict on one count should
not control your verdict on any other count.” Id.The trial court here used an identical jury instruction as that in Mutch, with
no additional instruction stating each charged count represents a distinct act. Each
to-convict instruction also indicated the same period of time, similar to Mutch.
However, Mutch considered more than the jury instructions alone in determining if
there had been a double jeopardy violation. The court considered “the evidence,
arguments, and instructions,” to determine if it was “‘manifestly apparent to the jury
that the State [was] not seeking to impose multiple punishments for the same
offense,” and that the State based each count on a separate act. Id. at 664(alterations in original) (quoting Berg II, 147 Wn. App. at 931). Indeed, the court in
Mutch found that despite deficient jury instructions, there was no double jeopardy
violation and upheld all five convictions. Id. at 665.
Again, the State was clear in its closing argument that the basis for the
attempted indecent liberties (and lesser-included assault) was Perkin’s act of
pulling down N.M.’s pants. This made it “manifestly apparent” to the jury that the
other acts that arguably could have been construed as supporting the assault
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charge were in support of the attempted kidnapping in the first degree (and lesser
included attempted kidnapping in the second degree), not the assault. Likewise,
it was manifestly apparent to the jury that the act of pulling down N.M.’s pants
several inches was not in support of an attempted kidnapping, but attempted
indecent liberties (and assault in the fourth degree). The definitional instruction,
which defines assault as “an intentional touching . . . that is harmful or offensive
regardless of whether any physical injury is done,” supports that each count was
based on a separate act.
III. Sentencing
Perkins finally argues he was sentenced on an incorrect offender score.
The court counted two prior offenses as two separate points, though Perkins
asserts they constitute the same criminal conduct and should have only been
counted as one point. He also alleges he should be resentenced under Blake,
which the State concedes.
We review a trial court’s decision regarding same criminal conduct for an
abuse of discretion or a misapplication of law. State v. Hatt, 11 Wn. App. 2d 113,
138, 452 P.3d 577 (2019). “Crimes constitute the same criminal conduct when
they ‘require the same criminal intent, are committed at the same time and place,
and involve the same victim.’” State v. Chenoweth, 185 Wn.2d 218, 220, 370 P.3d
6 (2016). All three elements must be present to demonstrate the two crimes are
the same criminal conduct. Id.In 2008, Perkins was convicted of burglary and unlawful possession of a
firearm. The firearms were stolen as part of the burglary. Perkins argues he had
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the same criminal intent for the burglary and the unlawful possession (to possess
the firearms) and they had the same victim (the owner of the firearms and other
stolen property). The State counters that the victim of the burglary was the owner
of the property and the victim of the unlawful possession of a firearm is the general
public.
This court, and our state Supreme Court, have previously held that the
victim of unlawful possession of a firearm is the general public. See State v.
Haddock, 141 Wn.2d 103, 110–11, 3 P.3d 733 (2000); see also Hatt, 11 Wn. App.
2d at 142. In Haddock, the court explained that the victim of unlawful possession
of a firearm was the general public, while the victim of possession of stolen firearms
was the owner of the property. 141 Wn.2d at 111. While all crimes impact the
general public, possessing stolen firearms “directly inflicted specific injury on
individuals.” Id.
While the guns Perkins possessed were stolen, he was not convicted of
possessing stolen firearms, but unlawful possession of firearms under RCW
9.41.040(b) because he had previously been convicted of a felony. Our prior case
law is clear that the public is the victim of this crime, while the victim of burglary is
the owner of the property. As such, the crimes have different victims and are not
the same criminal conduct.
We remand for vacation of the conviction for kidnapping in the second
degree, entry of judgment for attempted kidnapping in the second degree and
resentencing pursuant to Blake.
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Reversed in part, affirmed in part and remanded.
WE CONCUR:
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