                                                                          FILED
                                                                        NOV 10,2015
                                                                In the Office of the Clerk of Court
                                                              W A State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,             )
                                 )                     No. 32461-3-111
                Respondent,      )
                                 )
    v.                           )
                                 )
FRANCISCO JAVIER SORIA-NANAMKIN, )                     UNPUBLISHED OPINION
                                 )
               Appellant.        )

      KORSMO,    J. - Francisco Soria-Nanamkin appeals his convictions for first degree

burglary, unlawful imprisonment, theft of a motor vehicle, and second degree assault on

several grounds. We affirm.

                                         FACTS

      Mr. Soria-Nanamkin made several telephone calls in the early morning hours of

September 6,2012 to his former girlfriend, Tanya Abrego, asking her to pick him up.

She initially declined, but agreed to pick him up when he threatened to come to her house

while she and her son were trying to sleep. He was intoxicated when she picked him up

and drove him to a convenience store. He bought a cigarette and left on foot in a state of

anger. She drove home and returned to sleep.




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No. 32461-3-III
State v. Soria-Nanamkin


       Later that night Ms. Abrego was awakened by loud banging on her door.

Unbeknownst to her, Mr. Soria-Nanamkin had broken down the back door and entered

the house. She ran into her housemate's room and told him to phone the police. Mr.

Soria-Nanamkin came up behind her and struck her in the back of the head, knocking her

to the floor. He continued to hit and kick her. The housemate witnessed the assault but

did not get involved.

       Mr. Soria-Nanamkin then loaded her television and video game system into her

car and ordered her to get in the car too. She obeyed out of fear and they drove to his

girlfriend's house where he ordered her to throw rocks at his girlfriend's car until the

neighbors chased them off. They drove back to Ms. Abrego's house where Mr. Soria-

Nanamkin eventually drove off in Ms. Abrego's car, leaving her behind. Her car was

later recovered by the police.

       The next day, Ms. Abrego's lips and nose were swollen and bruised. Her right eye

was swollen shut and bruised. She had rug burns on her knees and right elbow, and

bruising to her upper-left hand side of her back, stomach, and left shoulder. While Ms.

Abrego received treatment at Yakima Memorial Hospital, an officer from the Yakima

Police Department came to interview her. During the interview, he dispatched officers to

arrest Mr. Soria-Nanamkin. Mr. Soria-Nanamkin was brought to the police station and

gave a recorded interview to Detective Chad Janis. In his statement, Mr. Soria-

Nanamkin admitted to being in the house, but he denied assaulting Ms. Abrego.

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       The prosecutor filed charges of first degree burglary, second degree kidnapping,

theft of a motor vehicle, and second degree assault. Each charge also was alleged to have

been committed against a family or household member. The court conducted a erR 3.5

hearing and admitted the statement at trial. The State also sought to admit evidence of

previous incidents of violence by Mr. Soria-Nanamkin against Ms. Abrego. Although the

defense contended that the evidence was extremely prejudicial, the court found that its

probative value outweighed its prejudicial impact. The defense obtained a limiting

instruction for the jury concerning the ER 404(b) evidence.

       Mr. Soria-Nanamkin testified at trial in his own behalf. He denied unlawfully

entering Ms. Abrego's house or forcing her to drive him to his girlfriend's house, but

admitted assaulting her. The jury found Mr. Soria-Nanamkin guilty of the burglary, theft,

and assault counts. It acquitted him of the kidnapping charge, but convicted him of the

lesser included offense of unlawful imprisonment. The jury also did not find that any of

the offenses were committed against a family or household member.

       The trial court imposed concurrent standard range sentences. The court also

directed that Mr. Soria-Nanamkin undergo a domestic violence perpetrator evaluation

and treatment prior to the end of his period of community supervision. He then timely

appealed to this court.




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                                          ANALYSIS

          This appeal challenges the sufficiency of the evidence to support the unlawful

imprisonment conviction, the decision to admit evidence pursuant to ER 404(b), the

effectiveness of trial counsel's representation, and the imposition of the domestic

violence perpetrator evaluation requirement. We address those challenges in the order

stated.

          Unlawful Imprisonment

          Mr. Soria-Nanamkin argues first that the evidence did not establish the "restraint"

element of the unlawful imprisonment charge. Properly viewed, the evidence did support

the verdict.

          Very familiar standards govern this challenge. Evidence is sufficient to support a

verdict in a criminal case if, viewing the evidence in a light most favorable to the

prosecution, ajury could find each element of the crime was proved beyond a reasonable

doubt. State v. Green, 94 Wn.2d 216,221-222,616 P.2d 628 (1980). The crime of

unlawful imprisonment is committed when the defendant knowingly restrains another

person. RCW 9A.40.040. "Restrain," in turn, includes restricting "a person's

movements without consent and without legal authority in a manner which interferes

substantially with his or her liberty." RCW 9A.40.01O(6). A "restraint" is "without

consent" when it is accomplished by intimidation. Id.




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No. 32461-3-II1
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       This court has described substantial interference as one that is '" real'" or

'" material,'" and not "a petty annoyance, a slight inconvenience, or an imaginary

conflict." State v. Robinson, 20 Wn. App. 882,884,582 P.2d 580 (1978), aff'd, 92

Wn.2d 357, 597 P.2d 892 (1979). In Robinson, the defendant grabbed a young girl by

her arm and said "do what I say or else," and then he began dragging her to his car. This

court concluded that was a substantial restraint. Id. at 883-885.

       Here, the record amply supports the jury's verdict on the restraint element. There

was evidence that the defendant used force and intimidation to order the victim out of her

house and into her car. Moments before he ordered her to get in the car, he beat her to

the floor and held her down. When he then wanted her to get in the car, she testified that

she obeyed out of fear. He drove to a location of his choosing, his girlfriend's house. He

ordered Ms. Abrego to get out of the car and throw rocks at his girlfriend's car. He then

ordered her to get back in the car and took her home, all the while subjecting her to

reckless driving. Ms. Abrego's obedience was not a matter of avoiding an annoyance or

an inconvenience. She had been beaten into submission and was fearful of further

violence. She was forced from her home into a car without means of escape or control

over the destination. On these facts, the jury was within its authority to conclude that Mr.

Soria-Nanamkin restrained Ms. Abrego through intimidation.

      The evidence was sufficient to support the jury's verdict.




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       ER 404(b) Evidence

       Mr. Soria-Nanamkin next argues that the trial court erred in admitting evidence of

his acts of prior violence against Ms. Abrego. The trial court carefully considered the

matter and struck a proper balance in admitting the evidence.

       Well-settled standards also govern this issue. Rulings admitting or excluding

evidence are reviewed for an abuse of discretion. In re Det. ofDuncan, 167 Wn.2d 398,

402, 219 P Jd 666 (2009). Discretion is abused when it is exercised on untenable

grounds or for untenable reasons. State ex reI. Carroll v. Junker, 79 Wn.2d 12, 26, 482

P.2d 775 (1971).

       ER 404(b) provides: 


       Evidence of other crimes, wrongs, or acts is not admissible to prove the 

       character of a person in order to show action in conformity therewith. It 

       may, however, be admissible for other purposes, such as proof of motive, 

       opportunity, intent, preparation, plan, knowledge, identity, or absence of 

       mistake or accident. 


       Before 404(b) evidence may be admitted, there must be a showing that "( 1) the 


evidence serves a legitimate purpose, (2) the evidence is relevant to prove an element of

the crime charged, and (3) the probative value outweighs its prejudicial effect." State v.

Magers, 164 Wn.2d 174,184,189 PJd 126 (2008). Relevant evidence is "evidence

having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence." ER 401. Evidence is unfairly prejudicial where it creates an undue tendency

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No. 32461-3-III
State v. Soria-Nanamkin


to suggest a decision on an improper basis. State v. Cronin, 142 Wn.2d 568, 584, 14 P.3d

752 (2000); State v. Cameron, 100 Wn.2d 520, 529, 674 P.2d 650 (1983).

       Here, the trial court admitted the prior acts evidence to show Ms. Abrego's state of

mind during the incident. Report of Proceedings (RP) at 509-510. Recognizing that Mr.

Soria-Nanamkin had been charged with kidnapping and the lesser included offense of

unlawful imprisonment, it was incumbent on the State to prove that the victim either had

been "abducted" or "restrained." RCW 9A.40.020, .040. Both of these elements can be

proved by showing that the victim was intimidated or threatened with deadly force.

RCW 9A.40.010(1), (6).

       Ms. Abrego testified that Mr. Soria-Nanamkin previously had physically abused

her, made threats against her and her son, and also described an incident where Mr. Soria-

Nanamkin drove her into a remote area and threatened to leave her. The prosecutor

accordingly relied on this testimony to explain in closing why Ms. Abrego got in the car

with him:

       [Deputy Prosecutor]: She was forced into this. And conduct that she did
       not want to engage in. She did it because of the threats, and the violence,
       and the history of violence. Her state of mind. It really brings it to life.
       That's why. That's why she got into that car.

RP at 560.

       The prior acts evidence was important to establish the victim's acquiescence to the

defendant's threats, a critical element of the State's case. Since this was the pivotal issue


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on that count, the trial court understandably assigned the probative value of the evidence

significant weight that outweighed the prejudicial effect of the evidence. This was a

tenable reason to admit the evidence.

       The trial court did not abuse its discretion in admitting the evidence.

       Ineffective Assistance o/Counsel

       Mr. Soria-Nanamkin next argues that his counsel provided ineffective assistance

because he should have sought to exclude the portion of his taped interview in which he

denied striking Ms. Abrego since it was inconsistent with his trial testimony. This

argument fails on multiple levels.

       As with the two previous issues, very well-settled law governs our review of this

claim. The Sixth Amendment to the United States Constitution guaranty of counsel

requires that an attorney perform to the standards of the profession. Counsel's failure to

live up to those standards will require a new trial when the client has been prejudiced by

counsel's failure. State v. McFarland, 127 Wn.2d 322, 333-335,899 P.2d 1251 (1995).

In evaluating ineffectiveness claims, courts must be highly deferential to counsel's

decisions. A strategic or tactical decision is not a basis for finding error. Strickland v.

Washington, 466 U.S. 668,689-691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under

Strickland, courts apply a two-prong test: whether or not (1) counsel's performance failed

to meet a standard of reasonableness and (2) actual prejudice resulted from counsel's

failures. Id. at 690-692. When a claim can be disposed of on one ground, a reviewing

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No. 32461-3-II1
State v. Soria-Nanamkin


court need not consider both Strickland prongs. State v. Foster, 140 Wn. App. 266,273,

166 P.3d 726, review denied, 162 Wn.2d lO07 (2007).

           With these standards in mind, resolution of this argument is straight forward.

First, Mr. Soria-Nanamkin does not explain the grounds on which the statement could

have been excluded. Without doing so, he cannot establish that his counsel erred, let

alone so significantly erred that counsel's conduct was not reasonable. We also note that

there was a very significant tactical reason to permit the statement into evidence. At the

time the State rested its case, it was unclear whether the defendant would testify or not.

RP at 437. Counsel could reasonably see utility in permitting the defendant's denial of

culpability to be admitted by the prosecutor in the event the defendant chose not to

testify.

           The alleged error also would not have been prejudicial. Even if the statement had

been suppressed, the prosecutor was still free to have used the suppressed statement to

impeach Mr. Soria-Nanamkin's contrary trial testimony. Harris v. New York, 401 U.S.

222,225,91 S. Ct. 643, 28 L. Ed. 2d 1 (1971). Given the defendant's decision to testify

contrary to the original statement, this admission still could have properly been

considered by this jury. Thus, any error in considering it in the first instance was

rendered absolutely harmless by the defendant's own testimony.

           For all of these reasons, Mr. Soria-Nanamkin failed to establish that his counsel

rendered ineffective assistance.

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No. 32461-3-II1
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       Domestic Violence Perpetrator Evaluation and Treatment

       Lastly, Mr. Soria-Nanamkin contends that the court erred in requiring an

evaluation once the jury declined to find that any of the crimes were committed against a

household member. We believe the trial court was permitted to conclude that these

crimes were domestic violence offenses.

       This court reviews the imposition of a community custody condition for abuse of

discretion. State v. Valencia, 169 Wn.2d 782, 793, 239 PJd 1059 (2010). A trial court

may impose a sentence condition that is required or permitted by law. State v. 0 'Cain,

144 Wn. App. 772, 775, 184 P.3d 1262 (2008). The legislature has provided courts with

discretion to impose community custody conditions that require the defendant to

participate in rehabilitative programs related to the crime. RCW 9.94A.703(3)(d).

Generally, a discretionary condition should be supported by evidence in the record that

the condition is crime related. Cain, 144 Wn. App. at 775. The absence ofa domestic

violence designation by the jury does not preclude domestic violence treatment. State v.

Hagler, 150 Wn. App. 196,201,208 PJd 32 (2009).

      RCW 9.94A.703(4)(a) states, in part, that the court may order "an offender

convicted of a crime of domestic violence, as defined in RCW 10.99.020" "to participate

in a domestic violence perpetrator program." In tum, RCW 10.99.020(3) defines "family

or household members" in part to include people who have dated and resided together in

the past. The definition of "domestic violence" under the statute includes a "family or

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No. 32461-3-III
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household member" who commits second degree assault, first degree burglary, or

unlawful imprisonment against another household or family member. RCW

1O.99.020(5)(b), (h), (q).

       The jury was properly instructed on the meaning of "family or household

members" in accordance with the terms ofRCW 10.99.020(3). Clerk's Papers (CP) at

358. Each of the four special verdict forms then asked, "as to" each "count," "Were

Francisco Javier Soria-Nanamkin and Tanya Abrego members of the same family or

household?" CP at 365-368. Given that the jury answered "no" to the question on each

form, Mr. Soria-Nananikin argues that the trial court could not order treatment for a

"domestic violence offense" since the jury concluded the two were not family members. I

       We would give the verdict forms preclusive effect on this finding   if they had
correctly asked the question presented by the facts of this case. The definition of

"household member" includes adults who had lived together in the past but were not

currently living together. CP at 358. That was the fact pattern here. The defendant and

victim had dated and lived together in the past, although they were not doing so at the

time of the offenses. However, the special verdict form did not ask the question if the

couple "were or had been members of the same family or household." Instead, it simply


       I Mr. Soria-Nananmkin does not argue that only the jury could determine that the
offenses were domestic violence offenses. Instead, he argues that the trial court made no
such finding. We believe the court's determination to order the treatment was such a
finding, if one was explicitly needed.

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No. 32461-3-III
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asked ""as to" each count if the two "were" members of the same family or household.

The jury understandably said ""no" even though both the defendant,and the victim had

testified to their prior relationship. There was no family or household member

relationship at the time ofthe crimes, which was the question the form asked the jury to

answer.

       Since the special verdict forms did not ask the correct question, the trial judge was

not bound by the answer under the facts of this case. Accordingly, the court properly

exercised its discretion to order an evaluation and treatment of Mr. Soria-Nanamkin due

to his three domestic violence offenses.

       The judgment is affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:



                                                        Lawrence-Berrey, J.




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