State v. Garcia, No. 27293-1-III (Wash. App. 6/25/2009)
| Decision Date | 25 June 2009 |
| Docket Number | No. 27293-1-III.,27293-1-III. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. CHRISTIAN G. GARCIA, Petitioner. |
Appeal from Spokane Superior Court. Docket No: 08-1-01126-8. Judgment or order under review. Date filed: 06/26/2008. Judge signing: Honorable Michael P Price.
Counsel for Petitioner(s), Carl Edward Hueber, Winston & Cashatt, 601 W Riverside Ave Ste 1900, Spokane, WA, 99201-0695.
Counsel for Respondent(s), Mark Erik Lindsey, Spokane County Prosecuting Attorneys, 1100 W Mallon Ave, Spokane, WA, 99260-2043.
Andrew J. Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA, 99260-0270.
UNPUBLISHED OPINION
This is a prosecution for unlawful imprisonment of a child. The case comes before us on discretionary review of the trial court's denial of a Knapstad motion. State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986) (). The court apparently concluded that absence of consent was sufficient to support the "restraint" element of unlawful imprisonment. It is not. We then reverse the denial of the Knapstad motion and dismiss the case.
Christian Garcia coached girls soccer in the spring of 2007. Z.N.B. was a member of her team. Ms. Garcia began babysitting for Z.N.B. and her two brothers. By the fall of 2007, Z.N.B.'s parents requested that Ms. Garcia no longer have contact with Z.N.B. They confiscated a cellular phone that Ms. Garcia gave to Z.N.B and told Ms. Garcia to stop giving their daughter phones. And they told Ms. Garcia that they did not want their daughter to be alone with her again. A couple of months later, the parents found a second cellular phone that Ms. Garcia had given to Z.N.B. The parents contacted police. Z.N.B. informed the investigating detective that Ms. Garcia gave her the phone during one of several occasions when Ms. Garcia met Z.N.B. at or around the child's school. Ms. Garcia met Z.N.B. at school on several Thursday mornings; she waved Z.N.B. over to her car and drove Z.N.B. to a nearby grocery store for breakfast.
The State charged Ms. Garcia with four counts of unlawful imprisonment arising from her interactions with Z.N.B. Ms. Garcia moved to dismiss the information pursuant to Knapstad. The court denied Ms. Garcia's Knapstad motion. Ms. Garcia then petitioned for discretionary review. A commissioner of this court granted the petition, and the State did not move to modify the commissioner's ruling.
The State begins by contesting our discretionary review of the trial court's ruling.
A commissioner of this court granted Ms. Garcia's motion for discretionary review pursuant to RAP 6.2 (). That rule specifies that motions for discretionary review are governed by Title 17 (Motions) of the Rules of Appellate Procedure. RAP 6.2(c). And RAP 17.7 provides that an "aggrieved person" may object to a commissioner's ruling "only by a motion to modify the ruling." The State did not move to modify the commissioner's ruling. The State's present objection to this court's consideration of Ms. Garcia's matter is then, at the least, untimely. See City of Spokane v. Marquette, 103 Wn. App. 792, 796-97, 14 P.3d 832 (2000), rev'd on other grounds, 146 Wn.2d 124, 43 P.3d 502 (2002).
The matter, on its merits, is then properly before us. Unlawful Imprisonment — Restraint Ms. Garcia argues that the trial court erred in ruling that physical restraint was not an element of unlawful imprisonment for a child less than 16 years old. We review a trial court's denial of a Knapstad motion de novo. State v. Hirschfelder, 148 Wn. App. 328, 333, 199 P.3d 1017 (2009), petition for review filed, No. 82744-3 (Wash. Feb. 20, 2009). And the question presented is strictly a question of law — does unlawful imprisonment of a child under the age of 16 require restraint — so for that reason also our review is de novo. State v. Benn, 161 Wn.2d 256, 262, 165 P.3d 1232 (2007).
Unlawful imprisonment requires that the State show the accused "knowingly restrains another person." RCW 9A.40.040(1). And "'[r]estrain' means to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with [her] liberty." RCW 9A.40.010(1). The lack of consent element is satisfied by "any means including acquiescence of the victim, if [she] is a child less than sixteen years old" whose parents have not acquiesced to the restraint. RCW 9A.40.010(1)(b).
Here is the State's factual showing on this point:
[T]he defendant waved to attract the victim's attention and on occasion got the victim into the defendant's car. The defendant would transport the victim to another location for "breakfast." Def. App. pg. 3. There were multiple other contacts and the defendant gave the victim two cell phones. All of the activities were without the permission of the parents. The defendant knew she was not permitted to contact the victim as she told the victim to hide the gifted cell phone.
The State showed that Ms. Garcia acted knowingly. RCW 9A.40.040(1); Clerk's Papers (CP) at 3, 5. And the State showed lack of consent because the child's parents did not acquiesce. RCW 9A.40.010(1)(b); CP at 3-5. But that does not support the second element required for unlawful imprisonment — restraint. It means restricting a person's movements. RCW 9A.40.010(1). And Ms. Garcia did not restrict Z.N.B.'s movements. She invited Z.N.B. into the enclosed space of her car. There is no showing that she locked the doors of the car or otherwise made it dangerous or impossible for Z.N.B. to exit the car. See State v. Kinchen, 92 Wn. App. 442, 452 n.16, 963 P.2d 928 (1998...
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