State v. Kinchen

• Decision Date: 14 September 1998
• Docket Number: No. 39117-8-I,39117-8-I
• Citation: 92 Wn.App. 442,963 P.2d 928
• Parties: STATE of Washington, Respondent, v. Stacey A. KINCHEN, Appellant.
• Court: Washington Court of Appeals

Page 442

92 Wn.App. 442

963 P.2d 928

STATE of Washington, Respondent, v. Stacey A. KINCHEN, Appellant.

No. 39117-8-I.

Court of Appeals of Washington,

Division 1.

Sept. 14, 1998.

Shannon Brooke Marsh, Washington Appellate Project, Seattle, for Appellant.

Shannon Dale Anderson, King County Deputy Prosecuting Attorney, Appellate Unit, Seattle, for Respondent.

GROSSE, Judge.

Parents can be guilty of unlawful imprisonment of their own children in circumstances where the restrictions on the children's movements, viewed objectively, are excessive, immoderate, or unreasonable. Such a construction of the relevant statutes saves them from a constitutional challenge as applied to the circumstance of questionable parental discipline. Nonetheless, while Kinchen's challenge on this basis fails, we reverse his conviction because the record fails to demonstrate a unanimous verdict by the jury as to the circumstances for which Kinchen was criminally liable in the care of his two children.

Kinchen's two boys, ages 8 and 9, are virtually uncontrollable, characterized as a disciplinary problem by their father, school officials, and their physician. They were often in trouble at school and had caused the family's eviction from an apartment complex, in which Stacey Kinchen had previously lived for 7 1/2 years, for noise, destruction of property, throwing rocks, and other problems. After the eviction, Kinchen had the boys examined by a physician who made a diagnosis that they were suffering from Attention Deficit Disorder (ADD). The boys were put on the medication Ritalin.

In early July 1995, a maintenance man for the complex went to the Kinchen apartment to repair the oven door. Kinchen was not at home but the boys were in the apartment. The boys told the maintenance man they could not open the door because it was locked and they did not have a key. Instead, they told him to enter through a window. He did so and once inside he saw that the original lock on the door had been replaced and a deadbolt lock added. He also noticed padlocks on the refrigerator/freezer, as well as the kitchen cupboards, and a closet with sliding doors.

On the morning of July 11, 1995, the apartment housekeeper noticed two boys digging through the apartment complex's dumpsters located outside. She confronted them and they responded that they were hungry. When asked why they did not eat at home, they replied that their father kept everything locked up. They said that before he went to work he gave them each a sandwich to eat for lunch, but they ate them right away. The housekeeper contacted the maintenance person who again crawled through the window of the Kinchen apartment. He noticed the same locked doors and cupboards. He said that without a key ingress and egress was limited to a window, although he admitted that this time he could open the sliding glass patio door. Police officers were called.

When the police officers arrived they found a spotless home, noting everything labeled and in place, including locked kitchen cabinets. The police officers also noticed that the lock on the bathroom door had been reversed so the button lock was on the outside. The boys told the police officers that their father locked them in the bathroom once while he was at work and that their attempt to get out was unsuccessful. They said their father left them with sandwiches to eat, and told them to call 911 in the event of an emergency. There were phones in the apartment, but not in the bathroom. The boys said they were threatened with bathroom "lock-up" when they were bad.

The boys said their father locked them inside the apartment without adult supervision on numerous occasions. They also testified that if they broke something or got into trouble, he would lock them in the bathroom for up to half a day while he went to work. The boys testified that Kinchen locked them in the apartment or the bathroom up to ten times each.

The boys exhibited some confusion during the testimony, but were definite about being locked in the bathroom or the apartment. Most of their answers were one or two word answers or "yes, sir" or "no, sir" answers to leading questions, but they did testify they could get out of the apartment through the window, and that they exited the window often, usually when they were hungry. They testified that their father and the principal at school "whooped" them, and that their mother "whooped them" and hit them with a broom, allegations denied by all three adults.

Kinchen testified that after moving into the apartment complex there were several days when the boys would sneak a significant quantity of the food he had left in the apartment, especially cookies and other sugar treats. He said the boys would eat these all at once, mostly at inappropriate times between meals. As a result, he placed locks on the kitchen cabinets and the refrigerator. He also testified that he placed security locks on the apartment door that locked from either the inside or outside, and that he provided his sons with keys to the door so they could get in and out. These keys were on strings to be worn around their necks. There were also spare keys to the front door which were on the door to his office in the apartment. Kinchen also explained that after he caught the boys "playing with each other" the bathroom lock was reversed so the boys could no longer lock themselves in the bathroom.

Kinchen testified regarding the trouble the boys had in school which included fighting, stealing, cursing, and taking a water gun to school resulting in numerous suspensions. He said the boys spray painted the television screen so he restricted their viewing, and he disconnected it and the VCR during the day. He testified regarding his purchase of the extra locks and keys and produced receipts from a Renton key shop dated in early June. Kinchen spent a long time recounting the boys' behavior and his discipline of them. He denied ever physically abusing or assaulting them.

There was also testimony from Kinchen's girl friend that she and her children spent the night at the Kinchen apartment on July 10, 1995. She testified that on the morning of July 11, she and her children left because she thought the boys were not around. She locked the apartment using a spare key on a string she retrieved from the office in the apartment. She returned to the apartment once Kinchen telephoned to inform her the boys were still at the apartment, but by the time she arrived the boys were gone, taken by police officers to Child Protective Services (CPS).

Kinchen's sister testified that either she or one of her baby-sitters often took care of the boys while Kinchen was working. Kinchen's 10-year-old niece testified that the boys would be at her house often and that the two families would fix dinner together at each other's house or would go out to eat at restaurants many times a week. She did state that the boys would be left alone on occasion.

There was testimony from a neighbor about two young boys who came to her apartment and asked for food. She let them in and fed them cereal. She tried to establish which apartment they lived in so she could look for the boys' parents, but she was unsuccessful by the time the boys finished eating and left. She did discover these were the same two boys found scrounging in the dumpster later that day.

The maintenance man testified that the boys were very happy to see him when he entered the apartment to fix the oven door. He stated they wanted to play the radio and told him they could not watch television but they could play the radio. The maintenance man testified that on July 11, the day that the police officers came, the sliding glass door into the apartment was open, not locked or chained, although he had again entered the apartment through the window.

Dr. Oldham, board certified and a Harvard Medical School graduate, testified that he diagnosed the boys with ADD in September of 1994 and said he had been their primary physician since July of 1992. He discussed letters contained in their file from school officials about the boys' behavior at school: being unfocused, crawling on the floor, tipping over the desks, hitting or punching other kids, tearing up papers. He testified that in the years he had seen the children he never suspected any kind of abuse. If he had, he indicated he would have made a CPS referral.

Initially the State charged Kinchen with one count of unlawful imprisonment. At trial, the State was allowed to amend the information to bifurcate the count as to each son and add two assault charges based on each of the boy's allegations. During deliberation, the jury sent a note to the court inquiring about definitions of "legal authority" and "unlawful and lawful authority." The jury made a request for the trial court to explain the differences between the terms. The court responded that instruction 6 explained under what circumstances parental discipline of a child is with "legal" or "lawful" authority. ¹

The jury found Kinchen guilty of both counts of unlawfully imprisoning his children contrary to RCW 9A.40.040, but acquitted him of the assault charges. He was given a standard range sentence of 90 days. Considering time served and good time, he was released. He was ordered to take parenting classes and have no contact with his sons for five years, unless the order was modified by CPS. Kinchen appeals.

DISCUSSION

Kinchen was convicted of unlawfully imprisoning his sons contrary to RCW 9A.40.040(1) which states:

A person is guilty of unlawful imprisonment if he knowingly restrains another person.

"Restrain" is defined in RCW 9A.40.010(1) as:

"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, or (b) any means including acquiescence of...