State v. Phuong

• Decision Date: 22 April 2013
• Docket Number: No. 67524–9–I.,67524–9–I.
• Citation: 299 P.3d 37,174 Wash.App. 494
• Parties: STATE of Washington, Respondent, v. Rattana Keo PHUONG, Appellant.
• Court: Washington Court of Appeals

174 Wash.App. 494

299 P.3d 37

STATE of Washington, Respondent,

v.Rattana Keo PHUONG, Appellant.

No. 67524–9–I.

Court of Appeals of Washington, Division 1.

April 22, 2013.

Casey Grannis, Nielsen Broman Koch PLLC, Seattle, WA, for Appellant.

Kristin Ann Relyea, King County Prosecutor's Office, Seattle, WA, for Respondent.

DWYER, J.

[174 Wash.App. 498]¶ 1 Pursuant to a jury's verdicts, Rattana Keo Phuong was convicted of unlawful imprisonment-domestic violence and attempted rape in the second degree-domestic violence. On appeal, he contends that insufficient evidence supports his conviction of unlawful imprisonment because the restraint employed in committing the unlawful imprisonment offense was “incidental” to the rape offense. Contrary to Phuong's contention, however, there is no Fourteenth Amendment due process right to be convicted of unlawful imprisonment only where the restraint employed in committing the offense is not incidental to a separately charged offense. Our legislature has not required as an element of unlawful imprisonment that the restraint be “not incidental” to another offense. Nor has our Supreme Court restricted the statutory definition of unlawful imprisonment to only those offenses where the restraint is “not incidental” to another offense. Moreover, contrary to Phuong's contention, our Supreme Court has never held that such a Fourteenth Amendment due process right exists. A constitutionally sufficient quantum of evidence supports Phuong's unlawful imprisonment conviction; accordingly, his due process challenge fails.

¶ 2 Phuong additionally asserts that the information charging him with unlawful imprisonment was deficient because it did not include as an element of the offense the statutory definition of “restrain.” Our Supreme Court has recently rejected a contention that a definitional concept constituted an essential element of an offense; thus, following the court's analysis in that case, we reject Phuong's contention in this case.

¶ 3 Finally, Phuong contends that his trial counsel's performance was deficient because his attorney did not argue, at sentencing, that the attempted rape and unlawful imprisonment offenses constituted the same criminal conduct. Because a reasonable probability exists that, had his counsel so argued, the court would have ruled that the offenses constituted the same criminal conduct for purposes of calculating Phuong's offender score, this claim has merit. Accordingly, while we affirm Phuong's convictions, we also remand the cause to the superior court for a new sentencing hearing.

I

¶ 4 In October 2001, Samouen Liem and Phuong married in Liem's native country of Cambodia. Liem arrived in the United States in early 2003. Liem and Phuong had a daughter, A., in 2003, and a son, D., in 2006. Their marriage began to collapse in early 2007. Phuong sought a divorce and moved in with his parents. During this time, D. lived with Liem and A. lived with Phuong in his parents' home.

¶ 5 On September 15, 2009, Liem arranged to drop off D. at Phuong's parents' home and to visit A. Although Phuong's parents were usually present during such visits, Liem noticed upon her arrival that they were not at home. Liem fed the children and spoke with Phuong for a few minutes. As she prepared to leave, Phuong called Liem a “hooker” and asked her to go upstairs and “have sex” with him. Liem refused and left the house.

¶ 6 Phuong followed Liem out of the house and attempted to grab her as she started the engine of her car. He stated that he wanted “sex” and attempted to pull her from the car. Liem yelled for the children to help. Despite the children's pleas that Phuong not hurt Liem, Phuong dragged Liem out of the car, through the garage, and into the house.

¶ 7 Phuong pulled Liem upstairs to his bedroom, while Liem kicked and screamed and the children pleaded for their father to stop. Phuong then pulled Liem into his bedroom and locked the door. He attempted to force Liem onto a mattress on the floor of the bedroom. Phuong tried to pull down Liem's pants, tearing the crotch seam of the pants. He removed his shirt and attempted to get on top of Liem, while she kicked and fought back. Phuong successfully prevented Liem from escaping, pinning her down by her wrists and telling her that he still loved her and wanted to have sex with her. Liem later testified at trial that Phuong did not stop until he heard his neighbor knocking on the door downstairs.

¶ 8 When Phuong left to answer the door, Liem quickly left the bedroom and went into the bathroom to fix her torn pants. She heard Phuong tell the neighbor that nothing had happened. Liem did not call out to the neighbor because she was afraid. Liem ran into Phuong as she attempted to leave the house. Phuong told her to leave the ripped pants behind to be fixed, but Liem declined. She left the house with both of the children.

[174 Wash.App. 501]¶ 9 As she drove away, Liem telephoned her boyfriend, Brian Armstrong, to tell him what had happened. She was crying and scared as she recounted the incident. Later during Liem's drive home, Phuong called her to apologize. Telephone records admitted at trial showed that Phuong called Liem 16 times during the six hours after the incident. Ultimately, Armstrong convinced Liem to report the matter to the police.

¶ 10 Phuong's neighbor, Audrey Germanis, would later testify that she became involved in the incident after A. and D. ran across the street to her home crying and screaming. She offered to help the children, who told her that their parents were fighting. Germanis followed A. into the house and loudly called Phuong's name until he emerged five to seven minutes later. According to Germanis, Phuong was shirtless and breathing “very heavily.” Phuong told Germanis that he and Liem were “just up there making a little love” and then escorted Germanis from the home.

¶ 11 Phuong was charged with attempted rape in the second degree-domestic violence and unlawful imprisonment-domestic violence. The jury convicted Phuong as charged, and the trial court imposed a standard range sentence.

¶ 12 Phuong appeals.

II

¶ 13 Phuong contends that insufficient evidence supports his conviction of unlawful imprisonment. Because a rational trier of fact could have found the elements of unlawful imprisonment beyond a reasonable doubt, thus satisfying the Fourteenth Amendment guarantee of due process, we disagree.

¶ 14 When reviewing a challenge to the sufficiency of the evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The purpose of this standard of review is to ensure that the trial court fact finder “rationally appl[ied]” the constitutional standard required by the due process clause of the Fourteenth Amendment, which allows for conviction of a criminal offense only upon proof beyond a reasonable doubt. Jackson, 443 U.S. at 317–18, 99 S.Ct. 2781;In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In other words, the Jackson standard is designed to ensure that the defendant's due process right in the trial court was properly observed.

¶ 15 Here, Phuong asserts that the State proffered insufficient evidence to support his conviction of unlawful imprisonment. As determined by our state legislature, “[a] person is guilty of unlawful imprisonment if he or she knowingly restrains another person.” RCW 9A.40.040(1). “ ‘Restrain’ means to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with his or her liberty.” RCW 9A.40.010(6). As relevant here, restraint is “without consent” where it is accomplished by “physical force, intimidation, or deception.” RCW 9A.40.010(6)(a).

¶ 16 Applying the Jackson standard, as we must, the evidence is clearly sufficient to support Phuong's unlawful imprisonment conviction. Phuong dragged Liem from her car, into his parents' house, and upstairs to his bedroom. He then pushed Liem onto his bed and pinned her down by her wrists in order to thwart her attempts to escape. Viewing these facts in the light most favorable to the State, a rational trier of fact could determine that Phuong knowingly restrained Liem as defined by our state legislature. SeeRCW 9A.40.010(6), .040(1). Thus, Phuong's Fourteenth Amendment due process right to be convicted only upon proof beyond a reasonable doubt was properly observed in the trial court. The evidence is sufficient to support his unlawful imprisonment conviction.

III

¶ 17 Nevertheless, Phuong contends, and the dissent agrees, that insufficient evidence supports an unlawful imprisonment conviction where the restraint employed in committing the offense is “incidental” to a separately charged offense. He asserts that, pursuant to our Supreme Court's decision in State v. Green, 94 Wash.2d 216, 616 P.2d 628 (1980)( Green ),¹ due process requires more than “incidental restraint” to support such a conviction. But our Supreme Court has never so held. Rather, the court has considered the incidental restraint concern in the context of the so-called “kidnapping merger rule” and, even so, has explicitly rejected this as a component of the law in our state. Similarly, our legislature has never defined the restraint-based crimes of kidnapping and unlawful imprisonment ² to require as an element of those offenses that the restraint employed be “not incidental” to a separately charged offense. Accordingly, Phuong's assertion that insufficientevidence supports his unlawful imprisonment conviction because the restraint employed was “incidental” to another offense is wholly without merit.

A.

The incidental restraint concern and the meaning of Green

¶ 18 The incidental restraint concern derives from the potential for prosecutorial...