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    IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,                              No. 68771-9-1


                     Respondent,                  DIVISION ONE




JEFFREY SAUNDERS,                                 PUBLISHED OPINION


                     Appellant                    FILED: October 21.2013

       Spearman, A.C.J. — The purpose of the "essential elements" rule in the context

of a to-convict instruction is to ensure that the jury is not left guessing at the meaning of

an element of the crime and that the State is not relieved of its burden of proving each

element of the crime. By contrast, the goal of the "essential elements" rule in the context

of a charging document is to give a defendant notice of the nature of the crime charged

so the defendant can prepare a defense. In applying the rule we are guided by the

purpose to be served. As such, we reject Jeffrey Saunders' argument that his conviction

for second degree kidnapping must be reversed under State v. Johnson. 172 Wn. App.

112, 297 P.3d 710 (2013), where we held that the definition of "restrain" was an

"essential element" of unlawful imprisonment that must be included in the charging

document. Holding that Johnson does not control in this challenge to the to-convict
No. 68771-9-1/2



instruction, that the jury was not left guessing at the meaning of an element of the crime,

and that the State was not relieved of its burden of proof, we affirm.

                                               FACTS


       On September 10, 2010, in Mount Vernon, Washington, Salvador Valdez, his son

J.V., his niece, and his sister were waiting in a Kentucky Fried Chicken drive-through in

Valdez's red, Ford Explorer. They were approached by Jeffrey Saunders, who

unbeknownst to Valdez, was a "bounty hunter," who along with Robin Davis and his

son, Chet Davis,1 had been hired to repossess the Explorer. Saunders yelled at Valdez

and directed him to pull forward. As Valdez proceeded through the drive-through lane,

he saw Saunders and the Davises standing near a large truck. They told him to get out

ofthe Explorer. But instead, Valdez drove off quickly, going over the curb as he left.

       Valdez drove to his sister's home in Mount Vernon where he dropped off his

sister and niece. On his way to Stanwood, he stopped at a Burger King. As he was

entering the parking lot he saw the same large truck driving behind him. Saunders and
Davis got out ofthe truck and ran toward the Explorer. Davis and Saunders ordered
Valdez and J.V. out of the car at gunpoint. Saunders denied brandishing a pistol that

was later found in the truck, but all parties agreed Davis was brandishing a rifle. Valdez

and J.V. complied. Saunders and Davis explained to two women who witnessed the

incident that they were bounty hunters. The women called 911.



        1Forease of reference, Chet Davis will be referred to by his first name. No disrespect is
intended.
No. 68771-9-1/3



       Saunders ordered Valdez to put his hands on the car and patted Valdez down.

He then took Valdez's wallet and gave it to Davis, telling him to "hold this in case he

runs." Saunders told Valdez that he was going to jail. Saunders got into the driver's seat

of the Explorer and ordered Valdez, who thought he was being carjacked, into the

passenger seat. J.V. was ordered at gunpoint to get into Saunders' truck. Saunders and

Davis refused Valdez's request that he and J.V. ride together. Davis then drove J.V. in

the truck, following the Explorer driven by Saunders.

       While riding in the Explorer, Valdez told Saunders he was diabetic and that he

feared he was going into diabetic shock. Saunders drove to a gas station and allowed

Valdez to get a drink. In response to the 911 call, the police arrived at the gas station

and investigated the incident, which resulted in Saunders and Davis each being

charged with two counts of kidnapping and two counts of second degree assault, each

count with a special allegation that the defendants were armed with a firearm at the time

the crimes were committed.2

       Saunders and Davis were tried together. At trial, Saunders testified that he

owned Allstate Recovery, a vehicle repossession business. He testified that he and

Davis were hired to repossess two of the Valdezes' cars, and that when he approached

the Explorer at the Kentucky Fried Chicken, he saw the driver make a hand movement

that was consistent with putting the car in gear. According to Saunders, he had to jump



        Saunders was also charged with and acquitted of one countof unlawful possession of a firearm.
No. 68771-9-1/4



back as the Explorer accelerated out of the drive-through. He testified he did not call the

police because he believed the police were biased against repossession agents.

        Davis testified that when they approached the Explorer at the Burger King

parking lot, it accelerated, nearly running over his son Chet. According to Davis, it was

at this point that he decided to arrest Valdez for attempted vehicular assault.

        The jury convicted Saunders of two counts of second degree kidnapping

while armed with a firearm, but acquitted him ofthe assault charges.3 He

appeals.

                                         DISCUSSION


        Saunders argues the to-convict instruction relieved the State of its burden of

proving all ofthe elements of kidnapping. We reject his argument and affirm.

        A to-convict instruction "must contain all of the elements of the crime because it

serves as a 'yardstick' by which the jury measures the evidence to determine guilt or

innocence." State v. DeRvke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003) (quoting State

v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997). Here, the to-convict instruction

read:

        To convict the defendant, Jeffrey Saunders, of the crime of
        kidnapping in the second degree as charged in Count I, each ofthe
        following elements of the crime must be proved beyond a
        reasonable doubt:

               (1) That on or about the 10th day of September, 2010, the
        defendant intentionally abducted Salvador Valdez; and


        3Davis was convicted on all counts, with firearm enhancements on each count. He appeals
separately, cause No. 68679-8-I.
No. 68771-9-1/5

                (2) That this act occurred in the State of Washington.
              If you find from the evidence that each of these elements has
       been proved beyond a reasonable doubt, then it will be your duty to
       return a verdict of guilty.

       On the other hand, if, after weighing all 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.

Clerk's Papers at 103. (The to-convict instruction for Count II, second degree

kidnapping of J.V. was identical in all material respects; see also CP at 105).

       Although this instruction mirrors the language in the statute defining kidnapping

in the second degree, RCW 9A.40.030, Saunders nevertheless argues it omits an

essential element of the crime. Saunders' argument can be summarized as follows: (1)

the word "abduct" is defined in RCW 9A.40.010(1)4 as "to restrain" a person by

threatening to use deadly force; (2) "restrain" is further defined in RCW 9A.40.010(6)5
as (a) restricting a person's movements; (b) without consent; (c) without legal authority;
and (d) in a manner which interferes substantially with his or her liberty; (3) each portion
of the definition of "restrain" requires the mens rea of knowledge;6 and (4) because the
definitions of "abduct" and "restrain" were not included in the to-convict instruction, but

were instead set out in a separate instruction, the State was relieved of its burden of


        4"'Abduct' means to restrain a person by either (a) secreting or holding him or her in a place
where he or she is not likely to be found, or (b) using or threatening to use deadly force." RCW
9A.40.010(1).

       5"'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.040.010(6).
        6Although RCW 9A.40.030 establishes intent as the mens rea for kidnapping, Saunders argues
that because RCW 9A.08.010(2) provides that if a person acts intentionally, the person also acts
knowlingly, knowledge is also an element of kidnapping upon which the jury must be instructed. See Brief
of Appellant at 21-22. He cites no authority for this proposition.
No. 68771-9-1/6



proving Saunders knew he did not have legal authority to restrict the victims'

movements.


       In his opening brief, Saunders relies primarily on State v. Warfield. 103 Wn. App.

152, 5 P.3d 1280 (2000). In that case, three bounty hunters restrained a person for the

purpose of arresting him on a 1987 misdemeanor warrant out of Maricopa County,

Arizona, jd. at 154. It was undisputed that the three did not know that the Arizona

warrant "had no lawful effect in Washington." IcL at 155. Division Two of this court held

that the word "knowingly" in the statute defining the crime of unlawful imprisonment7

modified all portions of the definition of "restrain." jd. at 159. Because it was undisputed

that the three bounty hunters did not have knowledge they were without legal authority

to restrict the person's movement, the court held the evidence was insufficient and

reversed the bounty hunters' convictions for unlawful imprisonment. Id.

       Warfield is of no help to Saunders because the question of what must be

included in a to-convict instruction for unlawful imprisonment was not at issue in that

case. The court did not discuss the to-convict instructions or any instructions at all.

Warfield simply held that a person charged with unlawful imprisonment must have

knowledge the restraint was without authority of law, and ifthe evidence does not show

the requisite knowledge, it is insufficient to sustain a conviction.

       In his reply brief, Saunders cites a case recently decided by this court, State v.

Johnson, 172 Wn. App. 112, 297 P.3d 710 (2012) as modified on denial of

       7"A person is guilty of unlawful imprisonment if he or she knowingly restrains anotherperson."
RCW9A.40.040(1).
No. 68771-9-1/7



reconsideration (Feb. 13, 2013)). In that case, Johnson was convicted of three counts of

second degree assault and one count of unlawful imprisonment for what his wife

testified amounted to years of domestic violence. Among other things, Johnson

challenged the sufficiency of the information charging him with unlawful imprisonment.

The information stated that the defendant "did knowingly restrain [J.J.], a human

being[.]" Id. at 137. The court held that the use of the word "restrain" was, by itself,

insufficient to provide Johnson with notice of the charge:

       Because the information refers only to "restrain," we look to its plain
       meaning in a dictionary. The American Heritage Dictionary states
       the following definitions: (1) "To hold back or keep in check;
       control"; (2) "To prevent (a person or group) from doing something
       or acting in a certain way"; and (3) "To hold, fasten, or secure so as
       to prevent or limit movement." Noticeably absent from these
       definitions is any mention of restricting "a person's movements
       without consent," "without legal authority," or by "interfer [ing]
       substantially with his or her liberty." While one could reasonably
       infer the first and last phrases, there is no way to reasonably
       conclude that the restraint must be "without legal authority." In
       short, the information is deficient because this essential element
       cannot be reasonably inferred from the information.

Id. at 138-39. The court also held that, based on Warfield, the statutory definition of

"restrain" was an "essential element" of the crime of unlawful imprisonment:

       In State v. Warfield, Division Two of this court held that "the
       statutory definition of unlawful imprisonment, to 'knowingly restrain,'
       causes the adverb 'knowingly' to modify all components of the
       statutory definition of 'restrain,' Including the 'without lawful
       authority' component." There, three bounty hunters knowingly
       restrained Mark DeBolt for the purpose of arresting him on a 1987
       misdemeanor warrant out of Maricopa County, Arizona. The three
       did not know that the Arizona warrant "had no lawful effect in
       Washington."

       The court explained that "knowledge of the law is a statutory
       element of the crime of unlawful imprisonment, without proof of
       which, defendants' convictions cannot stand." Then, the court
       reversed the defendants' unlawful imprisonment convictions
No. 68771-9-1/8

        because "[i]t is uncontroverted that defendants believed they were
        acting lawfully because they had a warrant for DeBolt's arrest" and
        a Washington police officer "appeared to ratify the lawfulness of
        their actions."

        Warfield supports the conclusion that an essential element of
        unlawful imprisonment is that a person have knowledge that the
        restraint was "without legal authority."

]a\ at 722-23 (footnote and citations omitted).8

        Johnson does not control our decision in this case because, like Warfield, it does

not address the question presented here: Whether the statutory definition of an element

of a crime must necessarily be included in the to-convict instruction? Washington courts

have long held that they do not. For example, in State v. Lorenz, 152 Wn.2d 22, 93 P.3d

133 (2004), the court addressed whether a definition of an element of first degree child

molestation must be included in the to-convict instruction. A person is guilty of first

degree child molestation "when the person has [ ] sexual contact with another who is

less that twelve years old and not married to the perpetrator and the perpetrator is at

least thirty-six months older than the victim." \± at 31 (citing RCW 9A.44.083(1)). The

court noted that in a separate "definitions" section, the legislature had defined "sexual

contact" as "any touching of the sexual or other intimate parts of a person done for the

purpose of gratifying the sexual desire of either party or a third party." jd. (quoting RCW

9A.44.010(2)).

        The court rejected the defendant's argument that sexual gratification was an

essential element that must be included in the to-convict instruction:

         8We note there is a split of authority in this court regarding whetherthe portions of the definition
of restrain are "essential elements" for the purpose of being included in an information charging unlawful
imprisonment. A recently decided case held the opposite ofJohnson on this issue: State v. Phuonq, 174
Wn. App. 494, 299 P.3d 37 (2013).



                                                      8
No. 68771-9-1/9

      RCW 9A.44.083 unambiguously states that a person is guilty of the crime
      of first degree of child molestation if: (1) the perpetrator has sexual
      contact, (2) with victim who is less than twelve years old, and (3)
      perpetrator is at least thirty six months older than the victim. The plain
      meaning rule applies. The legislature codified "sexual contact" as an
      essential element of first degree child molestation. The definition of
      "sexual contact" is in RCW 9A.44.010(2), a wholly separate section of
      chapter 9A.44 RCW, entitled "Definitions." Had the legislature intended a
      term to serve as an element of the crime, it would have placed "for the
      purposes of sexual gratification" in RCW 9A.44.083. Rather the definition
      of "sexual contact" clarifies the meaning such that it excludes inadvertent
      touching or contact from being a crime. State v. Gurrola, 69 Wn. App. 152,
      157, 848 P.2d 199 (1993); Brown, 78 Wn. App. at 895. A plain reading of
      the statute favors a holding that "sexual gratification" is not an essential
      element to the crime of first degree child molestation but a definition
      clarifying the meaning of the essential element "sexual contact." On this
      basis, we hold that "sexual gratification" is not an essential element of first
      degree child molestation.
      The State offers three additional reasons in support of the court holding
      that "sexual gratification" is not an essential element of first degree child
      molestation: First, the State asserts that courts have never required the
      words defining an element be included in the "to convict" instruction in
      place of the actual element itself. See State v. Laico, 97 Wn. App. 759,
      764, 987 P.2d 638 (1999) (definition of "great bodily harm" does not add
      an element to the assault statute, rather it is intended to provide
      understanding); State v. Marko, 107 Wn. App. 215, 219-20, 27 P.3d 228
      (2001) (definition of threat does not create additional elements rather it
      merely defines an element); State v. Strohm, 75 Wn. App. 301, 308-09,
      879 P.2d 962 (1994) (definitional term does not add elements to the
      criminal statute).

      Second, according to the State, such a holding would create poor policy
      because the inclusion of definitions would result in lengthy "to convict"
      instructions and potentially confuse the jury.


      The State's argument is supported by authority. We hold that "sexual
       gratification" is not an essential element to the crime offirst degree child
       molestation but a definitional term that clarifies the meaning of the
       essential element, "sexual contact."

jg\ at 34-36; see also State v. Allen, 176 Wn.2d 611, 630, 294 P.3d 679 (2013)
(separate definitional instruction defining "true threat" in felony harassment case was
not error; definition of "true threat" need not be included in to-convict instruction).
No. 68771-9-1/10



       The reasoning in Lorenz and Allen applies to this case. Ifthe legislature had

intended for the statutory definition of restraint to be an element of the crime to be

included in a to-convict instruction, it could have included the definition, or any part

thereof, in RCW 9A.40.030. It did not do so. We conclude that, similar to Lorenz, the

definition of "restrain" is not an essential element for purposes of being included in a to-

convict instruction, but is instead simply a definitional term that clarifies the meaning of

"abduct," the essential element of the crime of kidnapping.

       Saunders' reliance on Johnson also fails to recognize the different underlying

purposes for including an essential element in a charging document and including such

an element in a to-convict instruction. The rule that a charging document must include

all essential elements of a crime is grounded in the constitutional requirement that

defendants be informed of the nature and cause of the accusation against them. State

v. Taylor, 140 Wn.2d 229, 236, 996 P.2d 571 (2000). Thus, "[t]he 'primary goal' of the

'essential elements rule' is to give a defendant notice of the nature of the crime charged

so the defendant would be able to prepare to defend against the charge." ]d_, (quoting

State v. Kiorsvik, 117Wn.2d93, 101, 812 P.2d 86 (1991)).

       By contrast, notice to a defendant so he can prepare a defense is not a purpose

of including essential elements in a to-convict instruction. Rather, "'a 'to convict'

instruction must contain all of the elements of the crime because it serves as a

'yardstick' by which the jury measures the evidence to determine guilt or innocence.'"

DeRvke, 149 Wn.2d at 910, (quoting State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917



                                              10
No. 68771-9-1/11



(1997)). "It cannot be said that a defendant has had a fair trial if the jury must guess at

the meaning of an essential element of a crime or if the jury might assume that an

essential element need not be proved." Smith, 131 Wn.2d at 263 (citing State v.

Johnson, 100 Wn.2d 607, 623, 674 P.2d 145 (1983) overruled on other grounds. State

v. Bergeron, 105Wn.2d 1,4,711 P.2d 1000(1985)).

       Thus, the fact that a portion of a definition must be included in an information

does not mean it is essential to a to-convict instruction. For example, although "sexual

gratification" is an element of the proof necessary for the State to obtain a child

molestation conviction, it is not an essential element for purposes of a to-convict

instruction:

       Lorenz held only that the purpose of sexual gratification was not an
       essential element of first degree child molestation that must be
       included in the to-convict instruction. This conclusion does not,
       however, relieve the State of its burden to show sexual gratification
       as part of its burden to prove sexual contact.

State v. Stevens, 158 Wn.2d 304, 309, 143 P.3d 817 (2006).

       The proper question here is whether Saunders' right to due process was violated

by a to-convict instruction that left the jury guessing at the meaning of an element ofthe

crime or relieved the State of the burden of proving an element. It did not. "Jury

instructions are sufficient if they are supported by substantial evidence, allow the parties

to argue their theories ofthe case, and when read as a whole properly inform the jury of
the applicable law[.]" State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002). We

review jury instructions "in the context ofthe instructions as a whole[.]" State v. Pirtle,




                                              11
No. 68771-9-1/12



127 Wn.2d 628, 656, 904 P.2d 245 (1995). Here, the to-convict instruction mirrored the

statute defining kidnapping in the second degree, and both "abduct" and "restrain" were

defined in a separate instruction. Saunders has not shown a danger that the jury was

guessing at the meaning of an element of the crime, or that the State was relieved of

proving an element of the crime. Additionally, the trial court permitted Saunders to

argue, and Saunders did so argue, to the jury that he believed he had the authority to

restrain the Valdezes. In sum, Saunders' right to due process was not violated by the to-

convict instruction.




       Affirmed.




                                                              {.ChCW*^    kax
WE CONCUR:




                \                                                             J.




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