State v. Price, 10834-4-I

• Decision Date: 27 December 1982
• Docket Number: No. 10834-4-I,10834-4-I
• Citation: 33 Wn.App. 472,655 P.2d 1191
• Parties: STATE of Washington, Respondent, v. Tommy Lee PRICE, Appellant.
• Court: Washington Court of Appeals

Page 472

33 Wn.App. 472

655 P.2d 1191

STATE of Washington, Respondent, v. Tommy Lee PRICE, Appellant.

No. 10834-4-I.

Court of Appeals of Washington Division 1.

Dec. 27, 1982.

Rehearing Denied Feb. 9, 1983.

Washington Appellate Defender, Raymond Thoenig (appointed), Seattle, for appellant.

Norm Maleng, King County Pros. Atty., Jennifer Euchaner, Deputy Pros. Atty., Seattle, for respondent.

CORBETT, Judge.

The defendant, Tommy Lee Price, appeals his judgment and sentence for unlawful imprisonment and simple assault. We affirm.

During the early morning hours, the complaining witness, a 15-year old girl, came into contact with the defendant in the neighborhood of 20th and East Madison Street in Seattle. She testified that the defendant grabbed her around the neck and forced her to walk to a porch where he told her to take off her clothes. She took off her pants, and defendant lay on top of her. She testified that her memory of the details was not clear because of her intoxication; however, she clearly remembered trying to scream and that defendant repeatedly choked and threatened her. A witness heard the screams and called police. The police found the complaining witness on the porch with her pants down; the defendant was kneeling over her and his pants were unzipped. The defendant was arrested and the complaining witness was taken to Harborview Hospital where she was treated for bruises on her neck.

Defendant testified that the complaining witness, whom he thought was 18 or 19 years old, asked him to help her get to Broadway Avenue. As they walked along, she leaned on him to balance herself, but at one point started yelling for no reason. He then grabbed her to help her regain control. Defendant admitted that he intended to have sex with the girl, but claimed that she voluntarily took off her pants and that he never intended to rape her.

Defendant assigns error to instruction 10. ¹ It was given in conjunction with instruction 9, to define the elements of kidnapping in the first degree. The definition of "restraint" is substantially that contained in RCW 9A.40.010(1). An instruction essentially in the words of a statute is a proper instruction. State v. Levage, 23 Wash.App. 33, 35, 594 P.2d 949 (1979). Defendant argues that in order to be guilty of unlawful imprisonment, the State must prove that he had knowledge the person restrained was under 16 years of age. The elements of unlawful imprisonment were set out in instruction 16. ² No objection was made to this instruction and it, therefore, became the law of the case. State v. Sims, 14 Wash.App. 277, 281, 539 P.2d 863 (1975). Neither the instruction nor the statute, RCW 9A.40.040, ³ require knowledge of the victim's age. Instruction 10 is not so inconsistent with 16 that when read together they require such knowledge. The court did not err by so instructing the jury.

The defendant next assigns error to the last sentence of the reasonable doubt instruction. ⁴ He contends that the phrase "abiding belief" confused the jury and shifted the presumption of innocence and burden of proof to the defense. He argues that the jury could have convicted him, despite having had a reasonable doubt of his guilt, if it had an abiding belief in the truth of the charge against him. He claims that the court abused its discretion in failing to revise the last sentence of the instruction to read as follows:

If, after such consideration, you have a doubt for which a reason exists, then guilt has not been established beyond a reasonable doubt.

The reasonable doubt instruction was worded in the language of WPIC 4.01, as revised by State v. Walker, 19 Wash.App. 881, 884, 578 P.2d 83 (1977), and approved in State v. Tharp, 27 Wash.App. 198, 616 P.2d 693 (1980), aff'd on other grounds, 96 Wash.2d 591, 637 P.2d 961 (1981). Contrary to defendant's contention, the Tharp court held that an identical instruction "made clear that ... the burden of proof rested on the State." State v. Tharp, supra 27 Wash.App. at 212, 616 P.2d 693. In addition, the jury was directed to consider the instructions as a whole, and the instructions defining the elements of simple assault and unlawful imprisonment both stated:

[I]f, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

The jury was clearly informed that despite having an abiding belief in the truth of the charge, it could not convict the defendant if it had a reasonable doubt as to any of the elements of the crimes with which he was charged. Therefore, the phrase "abiding belief" could not have misled or confused the jury and the instruction was not error.

Finally, the defendant urges reversal of his conviction based upon the cumulative effect of incorrect jury instructions and improper conduct on the part of the prosecutor. During the trial, the prosecutor walked to the back of the courtroom to comfort the victim, who began crying during defendant's testimony. The following colloquy then took place in the presence of the jury:

PROSECUTOR: Your Honor, I had intended to call a rebuttal witness, but I'm not sure that she'll be in any condition--

THE COURT: Do you want to call a rebuttal witness at this time?

PROSECUTOR: I wonder if I could have a few minutes, she's a little upset.

The issue is whether there is a substantial likelihood that the prosecutor's remarks and actions affected the jury's...