State v. Missmer, 38835

• Decision Date: 30 December 1967
• Docket Number: No. 38835,38835
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Reuel W. MISSMER, Appellant.

Page 1022

72 Wn.2d 1022

435 P.2d 638

The STATE of Washington, Respondent, v. Reuel W. MISSMER, Appellant.

No. 38835.

Supreme Court of Washington, Department 2.

Dec. 30, 1967.

Owens & Johnson, Burton R. Johnson, Olympia, for appellant.

Harold Koch, Pros. Atty., F. Parks Weaver, Jr., Olympia, for respondent.

NEILL, Judge.

Defendant appeals from a conviction and sentence for 'child stealing,' being second degree kidnapping under RCW 9.52.010(2), the pertinent provisions of which are:

Every person who shall wilfully,

(2) Lead, take, entice away or detain a child under the age of sixteen years with intent to conceal him from his parent, parents, guardian or other lawful person having care, custody or control over him, * * * shall be guilty of kidnaping in the second degree and shall be punished as in the case of a felony.

Defendant is represented on this appeal by appointed counsel who was not trial counsel.

On August 31, 1965, defendant, who was residing near Shelton and then unemployed, drove his 'ambulance' (an old station wagon which at one time had been fitted out for ambulance service) to Olympia to seek employment. After making inquiry at the Olympia hospital and at the Olympia office of the Washington State Employment Service, he walked over to Capitol Lake park where boys and girls were swimming and playing. He there accosted a 14-year-old girl and asked her if she would be interested in 'assisting in organizing and helping with a first aid class' for which she was to be paid $1.60 per hour. The girl and a girl friend had been left at the park with arrangements that the friend's father would pick them up there at 5:30 in the afternoon. Defendant asked the young girl to go with him to his 'office' and demurred about her first calling her mother. Defendant was a certified first aid instructor, but he had no office of any kind.

The defendant and the girl left the park in defendant's automobile and spent approximately half an hour driving around through the main thoroughfares of Olympia and Tumwater. While driving around, defendant asked the girl if she knew anything about delivering babies at an accident and showed her the 'pressure points' on her arm and leg. About 5 p.m., defendant drove to the freeway on the Shelton-Aberdeen route. As he drove up on the 'on ramp' to the Shelton-Aberdeen freeway, his automobile ran out of gasoline. He turned around and headed back toward Olympia, thus placing the automobile in a position of going the wrong way on a one-way ramp. He asked the girl to watch his automobile while he went for gasoline. He walked back into town, obtained the gasoline and returned to the vehicle. During the period of approximately 10 minutes that defendant was obtaining the gasoline, a deputy sheriff observed the vehicle facing the wrong way on a one-way ramp with the 14-year-old girl standing in front of the automobile, so he stopped to make inquiry as to what she and the automobile were doing in this location. He was still interrogating her when defendant returned with the gasoline. Defendant protested to the officer that 'he was doing nothing wrong,' but was unable to satisfy the officer as to the circumstances. The defendant was taken to the courthouse for further inquiry. The charge and conviction presently under appeal resulted.

During trial, the defendant testified and admitted to prior convictions for adultery and for statutory rape.

Defendant assigns as error the trial court's failure to grant a motion to dismiss at the close of the state's case; the giving of instruction No. 3; ¹ the trial court's failure to grant a new trial or in the alternative arrest of judgment; and that the foregoing statute is unconstitutional as being so vague and indefinite in form and as interpreted as to fail to give fair notice of what acts will be punished thereunder.

Defendant first argues that under RCW 9.52.010(2), Actual concealment must be proven to take the case to the jury and that no evidence of concealment was presented. Actual concealment is not a necessary element of the offense under the statute. Defendant cites State v. Hoyle, 114 Wash. 290, 194 P. 976 (1921) and State v. Berry, 200 Wash. 495, 93 P.2d 782 (1939), to support his position that actual concealment is a necessary element of the crime, but in neither case was the issue of actual concealment as opposed to intent to conceal before the court. The proof need only show that defendant led, took, enticed away or detained the child With intent to conceal her from her parents. See State v. Pudman, 65 Ariz. 197, 177 P.2d 376 (1946); People v. McGinnis, 55 Cal.App.2d 931, 132 P.2d 30 (1942); 68 A.L.R. 719. Moreover, defendant seems to misunderstand the meaning of the word 'conceal' as it is used in the statute. In People v. McGinnis, supra, at 936, 132 P.2d at 32, the court held:

The common definition of the word 'conceal' is 'to hide or withdraw from observation; to cover or keep from sight.' It does not necessarily mean that the concealed individual or hidden object may not be located or found by reasonable means of discovery. (Italics ours.)

Clearly, the girl could have been as well concealed from her parents in defendant's automobile traveling along one of our high-speed freeways as she could have been in a deserted cabin in the country.

Defendant next contends that there was no evidence that he did 'lead,' 'take,' 'entice away,' or 'detain' the girl as those words are used in RCW 9.52.010(2). Webster's New Twentieth Century Dictionary (2d ed. 1960) defines 'entice' as meaning 'to allure; to lead on by exciting hope of reward or pleasure; to tempt' and defines 'lead' as meaning 'to direct; * * * to draw; to entice; to allure; * * * to induce; to prevail on; to influence.' Similarly, Black's Law Dictionary (4th ed. 1951) defines 'entice' as meaning 'to wrongfully solicit, persuade, procure, allure, attract, draw by blandishment, coax, or seduce * * * to lure, induce, tempt, incite, or persuade a person to do a thing.' In the case at bar, defendant's offering a 14-year-old child a job with payment of $1.60 per hour and requesting that she come with him to his office, when defendant in fact had no office and was unemployed, clearly constituted 'enticing away' as those words are used in the aforementioned statute.

Defendant next argues that there was no evidence pertaining to his acts or conduct from which the jury could find that he had the requisite intent to conceal the child from her parents. Substantial evidence must exist to sustain a finding of this specific intent. All the acts and conduct of the defendant, together with all the other circumstances in the case, will be considered. As stated in State v. LaVine, 68 Wash.2d 83, 86, 411 P.2d 436, 439 (1966):

It is not necessary that the assailant express his intent verbally. A jury can infer from his conduct and from the surrounding circumstances that he intended to achieve his purpose * * *.

Defendant contends that he intended to return the girl to the park by the appointed time, that she was not 'enticed' since she was not particularly interested in his job offer, and that it was not shown that she was concealed from her parents since he at all times drove on main, well-traveled thoroughfares in and around the Olympia area. But as we said in State v. Jackson, 72 Wash.Dec.2d 49, 59, 431 P.2d 615, 621 (1967):

All of these matters going to the question of parental consent and intent to conceal the girl from her parents were quite properly presented to the jury. But, they were just that--matters of defense, facts to be considered by the jury in determining the issues of parental consent and intent to conceal.

The evidence, from which...