State v. Grant

Ellington, J. ^*

¶1 — Terry Grant was convicted of first degree robbery and first degree kidnapping. Relying upon State v. Green¹ and State v. Korum,² he contends his kidnapping conviction violated due process because the restraint of the victim was merely incidental to the robbery and was therefore not sufficient to support a separate kidnapping conviction.

¶2 We reject Grant’s reading of Green and decline to follow Korum. It is well settled that separate convictions for first degree robbery and first degree kidnapping do not violate double jeopardy, regardless of the incidental nature of the kidnapping. To satisfy due process, the State must prove the statutory elements of each crime beyond a reasonable doubt. The State does not have to prove that one crime was “not incidental” to the other. Grant does not challenge the sufficiency of the evidence of the statutory elements, and the record establishes it was ample. We reject Grant’s arguments and affirm his convictions.

¶3 In the unpublished portion of this opinion, we address Grant’s contention that he received ineffective assistance of counsel and that his exceptional sentence for the kidnapping conviction was not justified. We affirm but remand for correction of a scrivener’s error.

BACKGROUND

¶4 On a December morning in 2008, Joanne Bigelow was home alone. She heard the doorbell. When she opened her door, two men with guns pushed their way inside. They told her she would not be hurt if she did everything they told her to do. They bound her ankles and tied her wrists behind her back with plastic tie wraps. Then they dragged her from the foyer to a downstairs bathroom.

¶5 Over the course of the next three hours, the intruders ransacked her house. Periodically they questioned her at gunpoint, seeking, among other things, her personal identification number. They accused her of lying, hit her, pulled her hair, and repeatedly threatened her. Bigelow overheard them discussing whether to wrap her in a plastic bag and take her to the bank, or “just shoot her through the door.”³ The robbers took televisions, cameras, jewelry, guns, and the rings from Bigelow’s fingers.

¶6 Eventually they bagged the loot and left, and Bigelow managed to escape. She ran to her neighbor’s house and called police. Grant was identified as one of the robbers and was charged with first degree robbery and first degree kidnapping. The jury found him guilty on both counts, and the trial court imposed an exceptional sentence.

ANALYSIS

¶7 To prove kidnapping in the first degree, the State must show that the defendant abducted someone with intent to facilitate the commission of any felony.⁴ “Abduction” is restraint by secreting a person where he or she is not likely to be found, or using or threatening to use deadly force.⁵ “To restrain” is to restrict movement in a manner that interferes substantially with a person’s liberty.⁶

¶8 Grant argues that any restraint of Bigelow was merely incidental to the robbery, and the evidence was therefore insufficient to support a separate kidnapping conviction.

¶9 We begin by recognizing the well-settled rule in Washington that when first degree kidnapping and first degree robbery are committed together, they may be punished as separate crimes. The double jeopardy clause prohibits multiple punishments for the same offense,⁷ but does not prohibit separate punishments for acts constituting different offenses unless the legislature so intended.⁸

¶10 Where the degree of one crime depends upon the commission of another offense, the legislative intent may be determined by application of the merger doctrine, which holds that when the legislature has clearly indicated that proof of one crime depends upon proof of another, the crimes will merge.⁹ Separate punishment is nonetheless permissible if the other offense involved “some injury to the person or property of the victim or others, which is separate and distinct from and not merely incidental to the crime of which it forms an element.”¹⁰

¶11 Kidnapping merges with some crimes,¹¹ but it is well settled that first degree kidnapping does not merge into first degree robbery. The announcement of this rule came in State v. Vladovic:

[T]he merger doctrine is a rule of statutory construction which only applies where the Legislature has clearly indicated that in order to prove a particular degree of crime (e.g., first degree rape) the State must prove not only that a defendant committed that crime (e.g., rape) but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes (e.g., assault or kidnapping). Pursuant to this rule, kidnapping does not merge into first degree robbery.^[12]

¶12 Six years later, in In re Personal Restraint of Fletcher, the court clarified that first degree kidnapping does not merge into first degree robbery even where “the kidnapping was incidental to and a part of the robbery, and did not have an independent purpose or effect.”¹³ The court also concluded that robbery does not merge into kidnapping because proof of one crime is not required to prove the other:

A reading of the statute makes it clear that the person who intentionally abducts another need do so only with the intent to carry out one of the incidents enumerated in RCW 9A.40-,020(l)(a) through (e) inclusive; not that the perpetrator actually bring about or complete one of those qualifying factors listed in the statute. Thus, the Legislature has not indicated that a defendant must also commit another crime in order to be guilty of first degree kidnapping, and therefore the merger doctrine does not apply. As a result, Fletcher may be punished separately for the kidnapping and robbery convictions.^[14]

In State v. Louis, the court held its course: “We see no reason to depart from our decisions in Vladovic and Fletcher”¹⁵

¶13 The merger doctrine thus poses no obstacle to separate punishments for the crimes committed here.

¶14 Grant avoids the double jeopardy cases by casting his argument as a due process challenge to the sufficiency of the evidence. The due process clause requires that the State prove by sufficient evidence every element of the crime beyond a reasonable doubt.¹⁶

¶15 Grant does not contend the evidence of first degree kidnapping was insufficient, and indeed, the evidence was ample. In sum, Grant and his accomplice pointed their guns at Bigelow, bound her hands behind her back, tied her feet together, and dragged her to a downstairs bathroom, where they kept her for approximately three hours. They repeatedly returned to question her at gunpoint, threaten her, and assault her. Bigelow overheard them discussing whether to shoot her. This is restraint by threat of deadly force with intent to facilitate robbery. Those are the elements of first degree kidnapping.

¶16 Grant argues, however, that due process requires more: a showing that he “restrained and moved Bigelow for a purpose independent from his intent to commit robbery.”¹⁷ His terminology comes from an exception to the merger rule: where crimes would otherwise merge, they may nonetheless be punished separately if the other offense involves some independent purpose or effect, some separate and distinct injury which is “not merely incidental to the crime of which it forms an element.”¹⁸

¶17 Grant relies heavily upon Korum, which involved a series of home invasion robberies. Korum was charged with multiple counts, including first degree kidnapping and first degree robbery. He contended that under Green, the evidence was insufficient because the kidnappings were merely “incidental” to the robberies.¹⁹ Division Two of this court agreed, relying on Green, and held the evidence insufficient because the restraint of the victims was incidental to the robberies so that the kidnappings “merged” into the robberies as a matter of law.²⁰

¶18 We respectfully disagree with the Korum court’s analysis and its reading of Green.

¶19 First, as discussed above, Korum’s first degree robbery and first degree kidnapping offenses did not merge.

¶20 Second, Green does not support the evidentiary analysis. Green involved a charge of aggravated murder in the first degree, committed in the furtherance of first degree kidnapping or first degree rape.²¹ In other words, proof of either rape or kidnapping in the first degree was required to elevate the crime to aggravated first degree murder. Green was not separately charged with rape or kidnapping.²² Green was therefore not a merger case.

¶21 The issue in Green was whether the State proved first degree kidnapping by means of secreting the victim.²³ The court applied (for the first time in Washington) the test for sufficiency of the evidence announced in Jackson v. Virginia²⁴ and held the evidence not sufficient to show that Green secreted his victim in a place she was not likely to be found.²⁵

¶22 The evidence in Green is easily seen as wanting. In plain view of witnesses, Green carried his child victim across the grass and around the side of an apartment building to a loading dock, which was itself clearly visible.²⁶ The time involved was a matter of minutes, the distance between Green’s first encounter with the- child and the place to which she was moved was “short,” and the place itself was public.²⁷ The court held that

no rational trier of fact could have found beyond a reasonable doubt [ ] that the victim had been restrained by means of secreting her in a place where she was not likely to be found____ Green could hardly have chosen a more public place to accost his victim or commit the homicide some 2 to 3 minutes later.^[28]

The court also made the following observation, which spurs the arguments before us:

[I]t is clear these events were actually an integral part of and not independent of the underlying homicide. . . . [T]he mere incidental restraint and movement of a victim which might occur during the course of a homicide are not, standing alone, indicia of a true kidnapping.^[29]

¶23 We must establish the context. Soon after its decision in Green, the court decided the first of its kidnapping-robbery merger cases, beginning with Vladovic in 1983. As discussed above, these cases hold that a completed first degree kidnapping does not merge into first degree robbery.³⁰ Justice Utter vigorously dissented in Vladovic, urging the adoption of a merger rule peculiar to kidnapping, i.e., “that forced movement of a person cannot support a conviction for kidnapping if it is merely incidental to some other offense.”³¹ He characterized Green as a merger case: “[W]e expressly recognized the kidnapping merger rule [in] State v. Green.”³² But the majority of the court did not agree. In Washington, first degree kidnapping and first degree robbery do not merge because the legislature intended to punish each offense separately.

¶24 Relying on the observation quoted above, however, Grant and the dissent contend Green introduced a new test, under which due process is not satisfied unless the kidnapping is shown to be not incidental to the robbery. According to the dissent, Green “ ‘borrowed’ ” the concept of incidental restraint from the merger cases and “incorporated this concept into a new standard for determining sufficiency of the evidence on appeal.”³³

¶25 Green did no such thing, and the few lines quoted above cannot be so interpreted.³⁴ Certainly the Green court borrowed language from the merger cases, including Johnson.³⁵ Whether an offense is incidental to another is relevant in double jeopardy analysis because even if the offenses would otherwise merge, the State may nonetheless seek punishment for both if it can show that the second offense involved “some injury to the person or property of the victim or others, which is separate and distinct from and not merely incidental to the crime of which it forms an element.”³⁶ The “incidental” inquiry does not arise where, as here, the offenses do not merge in the first place. Grant seeks to hopscotch over the double jeopardy clause and land on due process.

¶26 But nothing in Green suggests the court intended to mix and match these concepts or to adopt a new standard for reviewing evidentiary sufficiency. Borrowing merger terminology to describe the weaknesses in the State’s evidence is not the same as announcing a new approach to appellate review, especially when the court has otherwise kept complete silence on the matter and the passage consists of only a few lines. Where our court announces a new test, it is inclined to say so.

¶27 Further, the result of this alleged new approach to appellate review is effectively to impose a new, non-statutory element of the offense of first degree kidnapping, to wit, that it be “not incidental” to an accompanying crime. But only the legislature can enumerate the elements of a criminal offense.³⁷

¶28 Finally, as charged here, first degree kidnapping consists of abduction with intent to facilitate commission of another felony. Under Grant’s logic, if the other felony is intended but never consummated, the State may charge kidnapping, but if the other felony is actually committed, the State cannot charge both crimes. This is inconsistent with the definitions of each offense and with the legislative intent, as determined in the merger cases, to punish first degree kidnapping and first degree robbery separately.

¶29 The due process clause requires the State to prove the statutory elements of kidnapping, which the State did. It does not require the State to prove that first degree kidnapping was “not incidental” to first degree robbery. Due process was satisfied.

¶30 We affirm Grant’s convictions.

¶31 The balance of this opinion having no precedential value, the panel has determined it should not be published in accordance with RCW 2.06.040.

Dwyer, J., concurs.

* Judge Anne L. Ellington was a member of the Court of Appeals at the time oral argument was heard on this matter. She is now serving as a judge pro tempore pursuant to CAR 21(c).

1 94 Wn.2d 216, 616 P.2d 628 (1980).

2 120 Wn. App. 686, 86 P.3d 166 (2004), rev’d in part on other grounds, 157 Wn.2d 614, 141 P.3d 13 (2006).

3 Report of Proceedings (Feb. 23, 2010) at 51.

4 RCW 9A.40.020.

5 RCW 9A.40.010(1).

6 RCW 9A.40.010(6).

7 “No person shall be... twice put in jeopardy for the same offense.” Wash. Const. art. I, § 9; accord U.S. Const. amend. V.

8 State v. Vladovic, 99 Wn.2d 413, 422-23, 662 P.2d 853 (1983) (quoting Albernaz v. United States, 450 U.S. 333, 344, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981)); Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983) (quoting Whalen v. United States, 445 U.S. 684, 691-92, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980)).

9 Vladovic, 99 Wn.2d at 421.

10 State v. Johnson, 92 Wn.2d 671, 680, 600 P.2d 1249 (1979).

11 See id. at 681 (kidnapping and assault merge into completed rape).

[12] 12 99 Wn.2d 413, 420-21, 662 P.2d 853 (1983).

13 113 Wn.2d 42, 52, 776 P.2d 114 (1989) (emphasis added).

[14] 14 Id. at 52-53 (“[T]he statute only requires proof of intent to commit various acts, some of which are defined as crimes elsewhere in the criminal code. It does not require that the acts actually be committed.”).

15 155 Wn.2d 563, 571, 120 P.3d 936 (2005).

16 State v. Deal, 128 Wn.2d 693, 698, 911 P.2d 996 (1996); Green, 94 Wn.2d at 221-22 (“[T]he appropriate test for determining the sufficiency of the evidence ... as framed in Jackson v. Virginia, [443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)] is whether, after viewing the evidence most favorable to the State, any rational trier of fact could have found the essential elements of kidnapping beyond a reasonable doubt.” (emphasis omitted)).

17 Appellant’s Br. at 14.

18 Johnson, 92 Wn.2d at 680.

19 Korum, 120 Wn. App. at 689. Korum also alleged vindictive charging practices. Korum, 120 Wn. App. at 702-03 (citing Green, 94 Wn.2d at 227).

20 Id. at 707. The Korum analysis was rejected by Division Three of this court on grounds that Korum is essentially a vindictive charging case and is in conflict with the merger cases. State v. Butler, 165 Wn. App. 820, 831, 269 P.3d 315 (2012). Recently, Division Two held that a second degree kidnapping “was incidental to the crime of first degree robbery and [those] convictions merge.” State v. Lindsay, 171 Wn. App. 808, 843-44, 288 P.3d 641 (2012).

21 Green, 94 Wn.2d at 219.

22 Had he been so charged, convictions on those counts would have merged into the aggravated first degree murder conviction. Johnson, 92 Wn.2d at 680.

23 Green, 94 Wn.2d at 225-26.

24 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

25 Green, 94 Wn.2d at 221-22 (“[T]he appropriate test for determining the sufficiency of the evidence ... as framed in Jackson v. Virginia ... is whether, after viewing the evidence most favorable to the State, any rational trier of fact could have found the essential elements of kidnapping beyond a reasonable doubt.” (emphasis omitted)). The court found the evidence insufficient under either test.

26 Id. at 222-23.

27 Id. at 224.

[28] 28 Id. at 226 (emphasis omitted).

[29] 29 Id. at 226-27.

30 Grant contends the Vladovic court actually applied Green. This is incorrect. There was no Green issue at all because Vladovic was not charged with kidnapping the victim of the robbery. Vladovic, 99 Wn.2d at 424.

31 Id. at 428 (Utter, J., concurring in part, dissenting in part).

32 Id. 432 (Utter, J., concurring in part, dissenting in part).

33 Dissent at 507-08.

34 As the dissent points out, this issue has been litigated in other jurisdictions with varying results, and some courts require the jury to determine whether the restraint was incidental. See Frank J. Wozniak, Annotation, Seizure or Detention for Purpose of Committing Rape, Robbery, or Other Offense as Constituting Separate Crime of Kidnapping, 39 A.L.R. 5th 283 (1996).

35 The term “incidental” is lifted directly from Johnson. Green, 94 Wn.2d at 227 (citing Johnson, 92 Wn.2d at 676).

36 Johnson, 92 Wn.2d at 680.

37 State v. Calle, 125 Wn.2d 769, 777-78, 888 P.2d 155 (1995).