State Of Washington, V Adrian Juan Tomas

LIED
COURT OF APPEALS
DIVISION #,X
IN THE COURT OF APPEALS OF THE STATE di S IIRGli 3v
STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON,
Respondent,
v.
ADRIAN JUAN TOMAS, UNPUBLISHED OPINION
Appellant.
HUNT, J. — Adrian Juan Tomas appeals his jury trial conviction for first degree
kidnapping,' his sentences for his first degree kidnapping and first degree assault convictions,
and one of his community custody conditions. He argues that ( 1) the evidence was insufficient
to support the first degree kidnapping conviction as a separate crime because the restraint
involved was merely incidental to the assault, ( 2) the first degree kidnapping and first degree
assault constituted same criminal conduct for sentencing purposes, and ( 3) the trial court
exceeded its authority when it imposed a community custody requirement that he undergo a
chemical dependency evaluation and treatment. The State concedes that the trial court erred in
requiring Tomas to obtain a chemical dependency evaluation and treatment, but it argues that the
trial court should impose an alcohol dependency evaluation and treatment condition in its place.
We affirm the kidnapping conviction and the sentences, but we remand for the trial court to
strike the chemical dependency evaluation and treatment community custody requirement and to
consider imposing an alcohol dependency requirement.
1
Tomas does not appeal his assault conviction.
No. 44389 -9 -II
FACTS
I. KIDNAPPING AND ASSAULT
On August 4, 2012, while Michael Wiley Lowe was visiting family in Shelton, he and his
brother - law,"
in- Adrian Juan Tomas, visited several local bars. 1 Verbatim Report of
Proceeding ( VRP) at 53. After " last call," Lowe left the bar and attempted to get into Tomas' s
truck because he was tired and wanted to sleep. 1 VRP at 56. Finding the truck' s doors locked,
Lowe climbed into the back of the truck and went to sleep, believing that Tomas would take him
to his ( Tomas' s) house to spend the night when Tomas returned.
Instead, when Tomas returned to his truck, he drove to a rural " clear cut" area near the
local prison. 1 VRP at 81. Lowe was awakened by Tomas' s " yelling at [ him] and telling [him]
to wake up." , 1 VRP at 57. Tomas pulled Lowe out of the truck and hit him with a " pipe." 1
VRP at 59. Lowe attempted to run away, but Tomas chased him. Lowe eventually took the pipe
from Tomas but returned it when Tomas displayed what appeared to be a gun and threatened to
shoot him. Lowe then hid in the bushes. Tomas told Lowe that he could see him and to come
out. When Lowe did not comply, Tomas left in the truck.
II. PROCEDURE
The State charged Tomas with attempted first degree murder with a deadly weapon
enhancement, first degree kidnapping, and first degree assault with a deadly weapon
enhancement. The case proceeded to a jury trial.
The State' s witnesses testified as described above. Lowe further testified that he did not
willingly go to the " clear cut" area with Tomas and that he would not have gone there if he had
not been asleep in the truck. 1 VRP at 67. The State also presented surveillance tapes from a
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Shelton bar showing ( 1) Lowe and Tomas drinking together, ( 2) Lowe leaving the bar and
climbing into the back of Tomas' s truck, and ( 3) Tomas later approaching the truck and driving
away. Tomas did not present any evidence.
The jury found Tomas not guilty of attempted first degree murder. It found him guilty of
first degree kidnapping under RCW 9A.40. 020( 1)( c) ( kidnapping with intent to inflict bodily
injury) and first degree assault with a deadly weapon enhancement.
At the sentencing hearing, the State advised the trial court that ( 1) Tomas had no criminal
history; ( 2) the two offenses were not the same criminal conduct for sentencing purposes; and ( 3)
it should impose consecutive sentences for these two " serious violent" offenses2 under RCW
3' 4
9. 94A. 589( 1)( b). 2 VRP at 290. The State also asked the trial court to impose " alcohol
community custody] conditions" because there was evidence that Tomas had been drinking
when he committed the crimes. 2 VRP at 291.
2
RCW 9. 94A.030( 45)( a)( v), (vi).
3
The legislature amended RCW 9. 94A.589 in 2014. LAws OF 2014, ch. 101 § 1. The
amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
current version of the statute.
4 RCW 9. 94A.589( 1)( b) provides, in part:
Whenever a person is convicted of two or more serious violent offenses arising
from separate and distinct criminal conduct, the standard sentence range for the
offense with the highest seriousness level under RCW 9. 94A.515 shall be
determined using the offender' s prior convictions and other current convictions
that are not serious violent offenses in the offender score and the standard
sentence range for other serious violent offenses shall be determined by using an
offender score of zero.... All sentences imposed under this subsection ( 1)( b)
shall be served consecutively to each other and concurrently with sentences
imposed under ( a) of this subsection.
Emphasis added).
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Tomas argued that the two offenses were the same criminal conduct. Rejecting this
argument, the trial court imposed consecutive sentences because the offenses did not occur in
exactly the same location" and the " criminal intent" for each offense was different. 2 VRP at
294. The trial court also ordered " chemical dependency" evaluation and treatment as a
community custody condition. Clerk' s Papers ( CP) at 13. Tomas appeals his kidnapping
conviction, his consecutive sentences, and the " chemical dependency" evaluation and treatment
community custody condition.
ANALYSIS
I. SUFFICIENCY OF EVIDENCE
Tomas first argues that the evidence was insufficient to prove the kidnapping charge
because the restraint involved was ' merely incidental ' to the assault. Br. of Appellant at 6
quoting State v. Green, 94 Wash. 2d 216, 227, 616 P.2d 628 ( 1980)). Disagreeing, we hold that
the incidental restraint doctrine does not apply under these facts.
In reviewing an insufficient evidence claim, we review the evidence in the light most
favorable to the State and determine whether any rational trier of fact could have found the
elements of the charged crime beyond a reasonable doubt. State v. Brown, 162 Wash. 2d 422, 428,
173 P.3d 245 ( 2007). We weigh all reasonable inferences from the evidence in the State' s favor
and most strongly against the defendant. Brown, 162 Wash. 2d at 428.
Abduction is an element of first degree kidnapping. RCW 9A.40. 020( 1). Abduction can
take three forms, but each form necessarily involves restraint. RCW 9A.40. 010( 1); Green, 94
Wash. 2d at 225. " When the State presents only evidence of conduct that was merely incidental to
the commission of another crime, no rational trier of fact could find that the evidence proves
4
No. 44389 -9 -II
beyond a reasonable doubt that the conduct was a restraint." State v. Berg, 177 Wash. App. 119,
136, 310 P.3d 866 ( citing Green, 94 Wash. 2d at 229 -30), review granted in part, 179 Wash. 2d 1028
2014). Whether this " incidental restraint doctrine" applies is a " fact- specific determination."
Berg, 177 Wash. App. at 130, 136 ( citing State v. Elmore, 154 Wash. App. 885, 901, 228 P.3d 760,
review denied, 169 Wash. 2d 1018 ( 2010)).
We have applied this doctrine only when the kidnapping' s restraint and the non-
kidnapping offense are essentially contemporaneous and the defendant' s movement of the victim
was either nonexistent or negligible; such is not the case here. 5 Here, the kidnapping restraint
clearly exceeded what we have previously recognized as merely incidental to the other offense:
Tomas deliberately drove Lowe out of town to a secluded, private area before assaulting him.
Unlike the cases involving incidental restraint, the restraint did not occur in a private area merely
because that is where the victim was at the time of the assault; nor did Tomas move Lowe only a
6
short distance before assaulting him. Accordingly, we hold that the evidence was sufficient to
prove the kidnapping charge because the restraint it involved was not "' merely incidental "'7 to
5
See e. g., State v. Korum, 120 Wn. App. 686, 690 -92, 707, 86 P.3d 166 ( 2004) ( restraint
incidental to robberies when defendant restrained victims inside their homes to facilitate home
invasion robberies), affd in part, rev 'd in part, 157 Wash. 2d 614, 141 P.3d 13 ( 2006); Berg, 177
Wash. App. at 123- 24, 136 -38 ( restraint incidental to robbery when defendants restrained robbery
victim inside his workshop while defendants took property from his nearby home); see also
Green, 94 Wash. 2d at 224, 226 ( defendant moved murder victim 50 to 60 feet to open loading
dock that was visible from nearby public areas and apartments).
6 See, in contrast, the facts in the cases cited in preceding footnote 5.
7
Br. of Appellant at 6 ( quoting Green, 94 Wash. 2d at 227).
5
No. 44389- 9- 11
8
the assault.
II. SAME CRIMINAL CONDUCT
Tomas next argues that the trial court erred in concluding that the kidnapping and assault
were not same criminal conduct. Again, we disagree.
We review a trial court' s determination of the same criminal conduct under RCW
9. 94A.589( 1)( a) for abuse of discretion or misapplication of the law. State v. Mutch, 171 Wash. 2d
646, 653, 254 P.3d 803 ( 2011). A trial court abuses its discretion when its decision is manifestly
unreasonable or based on untenable grounds. State v. Powell, 126 Wash. 2d 244, 258, 893 P.2d 615
1995). Such is not the case here.
8 We note that other divisions of our court have rejected the incidental restraint doctrine and have
refused to consider the alleged incidental nature of the restraint. See e. g., State v. Phuong, 174
Wash. App. 494, 536 -37, 541 -42, 299 P.3d 37 ( 2013), petition for review filed, No. 88889 -2
Wash. May 31, 2013). Nevertheless, we have expressly adhered to this doctrine in Berg, 177
Wash. App. at 130 -31.
We note, however, that on May 27, 2014, our Supreme Court heard argument in Berg on
the following issue:
Whether in a prosecution for first degree robbery and first degree kidnapping, the
evidence of kidnapping is insufficient if it shows that the restraint of the victim
was only " incidental" to the commission of the robbery.
Supreme Court Issues: May Term 2014, WASH. COURTS,
http: / www.courts.wa.gov /appellate trial_courts/ supreme/ issues/ ?fa= atc_ supreme_ issues. display.
/
fileID= 2014May ( last visited July 15, 2014) ( No. 89570 -8, State ( petitioner) v. Berg & Reed
respondents)).
Regardless of whether the Supreme Court approves or rejects Berg' s incidental restraint
doctrine, Tomas' s challenge to the restraint component of his kidnapping conviction would still
fail. If the Supreme Court affirms our incidental restraint rationale in Berg, as we explain above,
the facts underlying his kidnapping and assault convictions do not fall within the doctrine. And
if the Supreme Court in Berg rejects the incidental restraint doctrine, then Tomas can no longer
use this doctrine to challenge the sufficiency of evidence supporting his kidnapping conviction.
6
No. 44389- 9- 11
I]n sentencing serious violent offenses, the crimes will be sentenced consecutively to
each other if they arise from `` separate and distinct criminal conduct.' That standard is defined to
be the same as the `` same criminal conduct' standard of RCW 9. 94A. 589( 1)( a)." State v.
Kloepper, 179 Wn. App. 343, 356, 317 P.3d 1088 ( footnote omitted) ( citing State v. Brown, 100
Wn. App. 104, 112 -15, 995 P.2d 1278 ( 2000), aff'd in part and rev 'd in part, 147 Wash. 2d 330, 58
P.3d 889 ( 2002)), review denied, 327 P.3d 55 ( 2014). RCW 9. 94A. 589( 1)( a) defines " same
criminal conduct" as " two or more crimes that require the same criminal intent, are committed at
the same time and place, and involve the same victim." If any one of these elements is not met,
the offenses are not same criminal conduct. State v. Porter, 133 Wash. 2d 177, 181, 942 P.2d 974
1997). We narrowly construe the same criminal conduct analysis to disallow most assertions of
same criminal conduct. State v. Wilson, 136 Wash. App. 596, 613, 150 P.3d 144 ( 2007).
A person is guilty of first degree kidnapping when he intentionally abducts a person with
intent to inflict bodily injury. RCW 9A.40. 020( 1)( c). Tomas completed first degree kidnapping
when he took Lowe into the woods with intent to assault him, regardless of whether Tomas ever
followed through with his intent to assault Lowe; thus, the kidnapping and the assault did not
occur at the same time. See State v. Larry, 108 Wn. App. 894, 916, 34 P.3d 241 ( 2001)
kidnapping and robbery of same victim are not same criminal conduct when kidnapping
occurred over a period of time and in several locations, whereas the robbery occurred at a single
time and place, not the same as that involved in the kidnapping "), review denied, 146 Wash. 2d
1022 ( 2002). Accordingly, we hold that the trial court did not abuse its discretion in finding that
the two offenses were not the same criminal conduct under RCW 9. 94A.589( 1)( a).
7
No. 44389 -9 -II
III. COMMUNITY CUSTODY CONDITION
Finally, Tomas argues that the " chemical dependency" evaluation and treatment
community custody condition was improper because the trial court failed to make a chemical
9
dependency finding as required under RCW 9. 94A. 607( 1). Br. of Appellant at 11. The State
concedes that the trial court erred in imposing this " chemical dependency" requirement and asks
us to remand to the trial court to strike this condition and to impose instead an alcohol treatment
requirement. Br. of Resp' t at 22. Although the record shows that alcohol use may have
contributed to Tomas' s offenses, it does not show that Tomas had any chemical dependency
other than alcohol.
Accordingly, we accept the State' s concession and remand for the trial court to strike the
chemical dependency evaluation and treatment requirement. Because the record would support a
finding that alcohol contributed to Tomas' s offenses, the trial court may consider imposing an
alcohol evaluation and treatment requirement on remand, if supported by the
9
RCW . . 94A.607( 1) provides:
9
Where the court finds that the offender has a chemical dependency that has
contributed to his or her offense, the court may, as a condition of the sentence and
subject to available resources, order the offender to participate in rehabilitative
programs or otherwise to perform affirmative conduct reasonably related to the
circumstances of the crime for which the offender has been convicted and
reasonably necessary or beneficial to the offender and the community in
rehabilitating the offender.
8
No. 44389- 9- 11
necessary findings. We otherwise affirm Tomas' s sentences and his kidnapping conviction.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur: