State v. Allen, 46646
| Decision Date | 18 December 1980 |
| Docket Number | No. 46646,46646 |
| Citation | 94 Wn.2d 860,621 P.2d 143 |
| Parties | The STATE of Washington, Respondent, v. Robert W. ALLEN, Appellant, and Gregory Lamont Casterlow, Petitioner. |
| Court | Washington Supreme Court |
Sinnitt, Teitge, Sinnitt, Inc., P. S., Gregory L. Lewis and Carl D. Teitge, Tacoma, for petitioner.
Don Herron, Pierce County Prosecutor, Michael R. Johnson, Deputy Pros. Atty., Tacoma, for respondent.
Gregory Casterlow and co-defendant Robert Allen were convicted of first degree robbery and first degree kidnapping. The convictions were affirmed in an unpublished opinion by the Court of Appeals. Casterlow's petition for review was granted. We affirm the Court of Appeals.
At approximately 3 a. m. on August 19, 1977, Daniel Rodriguez, a Stop-and-Go Store employee, was sweeping door mats in front of the store. No customers were present at the time. Defendants stopped their automobile in front of the store and the passenger asked Rodriguez to come to the car. As he approached the car, the passenger pointed a rifle at him, told him it was a "hold up" and directed him to get into the back seat. Rodriguez complied. Upon his entering the car the passenger asked Rodriguez how to operate the store's cash register and received instructions. Thereafter, the passenger gave his rifle to the driver and went into the unoccupied store.
The driver ordered Rodriguez to lie down with his face toward the back so they could not be observed. He threatened Rodriguez with the comment that "if (he) hadn't told him exactly how to operate, (he) would be going all the way with them." The passenger returned in one or two minutes, demanded further instructions as to the operation of the cash register and thereafter returned to the store. Subsequently, the passenger returned to the car with the cash register drawer, placed it on the front seat and again took possession of the rifle. The passenger pointed the rifle at Rodriguez, telling him to keep his face down and added that they were going to take him on a small trip. Thereafter they drove approximately two blocks to a side street, drove down another block and stopped. Rodriguez was told to get out, start running back to the store and not to look back. Rodriguez did as he was told.
Shortly thereafter defendants Casterlow and Allen were arrested and each was charged with one count of first degree robbery and a second count of first degree kidnapping. A jury convicted each defendant on both counts. After an unsuccessful appeal to the Court of Appeals, this court was petitioned for review of the following issues: (1) failure of the trial court to dismiss the kidnapping charge; (2) failure of the trial court to give defendant's supplemental instruction No. 2; and (3) preservation of witness Rodriguez' testimony on video tape later shown to the jury.
I. Whether the Trial Court Erred in Refusing to Dismiss the First Degree Kidnapping Charge.
Petitioner argues that the trial court should have dismissed the first degree kidnapping charge (hereinafter kidnapping) asserting the elements of proof that would support a conviction under RCW 9A.40.010 and .020 are the same as those which would constitute first degree robbery (hereinafter robbery) under RCW 9A.56.190 and .200. It is urged that, at best, the kidnapping was only incidental to the robbery and thus the kidnapping charge was duplicitous. We do not agree with the contention and affirm the Court of Appeals.
RCW 9A.56.190 and .200 define robbery as follows:
9A.56.190 A person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial.
9A.56.200 (1) A person is guilty of robbery in the first degree if in the commission of a robbery or of immediate flight therefrom, he:
(a) Is armed with a deadly weapon; or
(b) Displays what appears to be a firearm or other deadly weapon; or
(c) Inflicts bodily injury.
RCW 9A.40.020 and .010 define kidnapping as follows:
Kidnapping in the first degree. (1) a person is guilty of kidnapping in the first degree if he intentionally abducts another person with intent:
(b) To facilitate commission of any felony or flight thereafter ...
(Italics ours.)
9A.40.010 Definitions. The following definitions apply in this chapter:
(1) "Restrain " means to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with his liberty. Restraint is "without consent" if it is accomplished by (a) physical force, intimidation, or deception, ...
(2) "Abduct " means to restrain a person by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly force ...
(Italics ours.)
A review of the foregoing statutes makes it clear robbery and kidnapping require different elements of proof.
As applied to the facts of this case, robbery requires (1) a taking of personal property, (2) from the person or in one's presence, (3) by the use or threatened use of force, or violence or fear of injury, (4) such force or fear being used to obtain or retain the property, (5) while armed or displaying a deadly weapon. On the other hand, as applied to the facts of this case, kidnapping involves an abduction to facilitate a subsequent flight from the commission of a felony, said abduction involving: (1) a restriction of a person's movement, (2) without consent, by (3) secreting or holding the victim in a place where he is not likely to be found, or by (4) using or threatening to use deadly force.
In the instant robbery the force or fear was employed to obtain personal property (i. e., the money) from Rodriguez. In the subsequent kidnapping the force was used to abduct the victim by secreting him in a place where he was not likely to be found (i. e., lying flat in the back seat of a car) or to facilitate the flight from the scene of the robbery, thus unlawfully restraining or restricting the victim's movement by physical force or intimidation.
Once the money had been obtained by force, the robbery was completed. Any incidental abduction or restraint occurring during this short period of time would merge into the robbery as a matter of law. State v. Johnson, 92 Wash.2d 671, 676, 600 P.2d 1249 (1979). "(T)he mere incidental restraint and movement of a victim which might occur during the course of a (crime) are not, standing alone, indicia of a true kidnapping." State v. Green, 94 Wash.2d 216, 227, 616 P.2d 628 (1980) (Italics in original.) A kidnapping which occurred thereafter would be a wholly separate event, however. Neither the flight from the scene of the robbery nor the means of flight therefrom was statutorily or logically a part of the robbery. We are aware of no case which supports the unique theory that a felon is entitled, as a part of the criminal act, to escape from the scene of the crime. Most certainly it is not an element of the crime of robbery. Thus, the kidnapping involved in the instant case was not incidental to, a part of, or coexistent with the robbery. The first crime (robbery) had come to an end before the second crime (kidnapping) began.
We do not hold that under other facts a kidnapping may not be incidental to or merged with robbery or some other felony. 1 We hold only that under the facts of this case the kidnapping and the robbery occurred as separate events, albeit close in time, and that the subsequent kidnapping was neither incidental to nor merged with the robbery.
We hold the trial court did not err by refusing to dismiss the kidnapping charge. II. Whether the Trial Court Erred by Refusing to Give Petitioner's Supplemental Proposed Instruction No. 2.
Petitioner contends the trial court erred by failing to give...
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