State v. Dove

Decision Date01 August 1988
Docket NumberNo. 19853-0-I,19853-0-I
Citation52 Wn.App. 81,757 P.2d 990
PartiesSTATE of Washington, Respondent, v. Larry Dean DOVE, Appellant.
CourtWashington Court of Appeals

Julie Kesler, Washington Appellate Defender, Seattle, for appellant Larry Dean Dove.

Norm Maleng, King County Pros. Atty., Saul Gamoran, Deputy Pros. Atty., Seattle, for respondent State of Wash.

SCHOLFIELD, Chief Judge.

The defendant, Larry Dean Dove, appeals from a conviction for first degree kidnapping. We affirm.

FACTS

On August 6, 1986, Mrs. Undi came home from shopping and drove into her garage. A masked figure, later identified as Greg Bingisser, grabbed her out of the car, threw her onto the cement floor, and tied her hands behind her back. After a brief struggle, Bingisser placed Mrs. Undi in the trunk of her car, drove to a wooded area, took her out of the trunk and walked her down a ravine. He told her that he would not harm her, but he used abusive language. At the bottom of the ravine, he chained her to a tree and left. He returned a short time later, put chains around her wrists, gave her a partial can of Coke, and stated that he had to do this because there were two others involved. Then he left again.

A neighbor, Shirley Erickson, had notified the police after she arrived at the Undi residence for a dinner date and saw that both garage doors were open, no cars were in the garage, and some things were spilled on the floor, including Mrs. Undi's credit cards and her key ring.

Mr. Undi arrived home at approximately 7 o'clock. After speaking with the police, he called his son and daughter. At about 11:05 p.m., the Undis received a phone call. The person said, "Hundred thou, 9 p.m. tomorrow", and then hung up.

The Undis notified the police that they got a ransom demand, and the F.B.I. became involved shortly thereafter. Arrangements were made to tape and trace incoming calls. The Undis obtained $100,000 in one hundred dollar bills, as requested.

A series of phone calls was received by the Undis over the next several hours. In response to a call received shortly after midnight on August 8, Shale Undi and his brother dropped the money at a place marked by an orange traffic cone behind a 7-Eleven store. The money was not picked up after that first drop, and Shale and his brother retrieved the money after another call. At 9 p.m. the next evening, they received a call and then proceeded to a second destination marked by an orange cone and dropped the money off again. This call was traced to a pay telephone at a truck weigh station. At approximately 11:40 p.m., they received a final phone call in which they were told where to find Mrs. Undi. The police then recovered Mrs. Undi and took her to the hospital.

On August 5, 1986, at approximately 8:30 a.m., a neighbor had observed two men standing at the corner of the Undi home talking together. On the same day at approximately 7 or 7:30 a.m., another neighbor observed a blue Pontiac and wrote down its license number. The registered owner of the vehicle was Patrick Lemma.

Officers located Lemma at a campground in eastern Washington. Lemma had been at the park since August 6, the date of the abduction. The police kept Lemma under surveillance, but did not contact him until Mrs. Undi had been recovered. At that time, Lemma made a statement which led the police to Bingisser.

Lemma, Bingisser, and Dove, who were friends and were former employees of Mr. Undi, were arrested along with Bingisser's wife, Marci Zaharevich. Zaharevich was later released because the police determined that she was not involved. Ninety-seven thousand six hundred dollars of the money, wrapped in aluminum foil, was found in Bingisser's bedroom. Bingisser, Lemma and Dove were charged by information with one count of first degree kidnapping. Bingisser pleaded guilty, and Dove pleaded not guilty. In exchange for Lemma's testimony at trial, the State agreed to charge him with rendering criminal assistance in the first degree rather than kidnapping in the first degree.

Testimony at trial indicated that on July 22, 1986, Bingisser had approached Lemma about kidnapping Mrs. Undi. Lemma obtained the chains that were later used to chain Mrs. Undi to the tree. Bingisser and Lemma went to the Undis' residence on three or four occasions. Lemma had taken some chloroform with him to subdue Mrs. Undi. Bingisser and Lemma discussed where they were going to hide Mrs. Undi, and they went to the place and put chains around a tree.

On August 5, Bingisser and Lemma went to the Undis' house in Lemma's car to observe Mrs. Undi. They had planned to abduct her on that day, but when Mrs. Undi came home, Lemma told Bingisser that he did not want anything to do with it, so they left.

At about 8 or 9 o'clock the next morning, Lemma went camping in eastern Washington. On August 7, Bingisser went to see Lemma in eastern Washington, told him he had abducted Mrs. Undi and asked him to come back and help him. Lemma refused, so Bingisser left.

Bingisser first approached Dove about the kidnapping 2 to 3 weeks before the actual abduction took place. Dove refused. On August 5, Bingisser asked Dove to cancel a trip to Oregon because he could make more money with him. Dove again refused. Dove spent the night of August 5 in a truck parked outside of his boss's house and on August 6 at 10:30 a.m. he went to Portland with his boss for a day and a half.

Both Dove and Dove's boss testified that Dove never tried to call Bingisser while he was in Oregon. Dove initially denied seeing Bingisser on August 7, but later said that on August 7, Bingisser came to his house and asked him to go out for a beer. Bingisser then told Dove that he had kidnapped Mrs. Undi, but Dove testified that he did not believe him, although Bingisser told him specific facts about the kidnapping. That evening, Dove dropped Bingisser off at a 7-Eleven, drove home and went to bed. At the 7-Eleven, Dove saw Bingisser make a phone call, which Dove knew was a ransom demand.

The next day, Bingisser told Dove he needed him to help pick up the ransom money. Bingisser and Dove then drove to a construction site, where Dove grabbed an orange cone and put it in the car. They drove to a location where Dove placed the cone alongside the road, and then they drove to a phone booth by a truck weigh station. Dove testified that at this point, he believed that Bingisser had kidnapped Mrs. Undi. Bingisser held Dove's nose while Dove read a note to the Undis. After making the phone call, Dove dropped Bingisser off at the orange cone and drove to where he was supposed to wait for Bingisser. Bingisser returned to the car with something wrapped in tin foil which Bingisser said was $100,000. They drove to another phone booth, and Bingisser made a phone call to the Undis, telling them where to find Mrs. Undi. Bingisser did not offer Dove any of the money, nor did Dove expect to receive any money. As compensation for his part in the kidnapping, Dove was offered high-grade marijuana from Bingisser before the kidnapping was committed.

Defense testimony showed that on the evening of August 9, Bingisser hired a limousine and went to Montana's with Dove's brother and two other men. While at Montana's, they got in an argument, and Bingisser and Dove's brother beat up Dove. Then Bingisser put Dove in a taxi cab and sent him home where he had a fight with his father. According to Dove's sister, Dove came home around midnight. However, Lynn Fife, the chauffeur of the limousine, presented contradictory testimony that when he picked up the group from Montana's after midnight, Dove was among them. He then testified as to the party's activities that night, including several attempts by the group to purchase drugs.

When Dove gave his statement to the police, he had black eyes and cuts and bruises on his face, which were due to both a fight with Bingisser and his brother and a fight with his father. Dove was tried before a jury. At trial, Dove presented...

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    ...225 Conn. 347, 351, 622 A.2d 1014 (1993), citing State v. Jefferies, 304 S.C. 141, 145, 403 S.E.2d 169 (1991) and State v. Dove, 52 Wash.App. 81, 88, 757 P.2d 990 (1988). Kidnapping is a continuing crime. State v. Smith, 198 Conn. 147, 155, 502 A.2d 874 Because the facts clearly demonstrate......
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