          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                              NO. 70665-9-1


                     Respondent,                  DIVISION ONE


                     v.
                                                                                          ro


TAMARA SAMANTHA TRYON,                            UNPUBLISHED OPINION


                     Appellant.                   FILED: September 22, 2014



       Lau, J. — Tamara Tryon appeals her first degree kidnapping conviction. She

contends that reversal is warranted because (1) the to-convict instruction omitted

essential elements, (2) an instruction incorrectly defined "knowledge," and (3) the trial

court refused her citizen's arrest instruction. Finding no reversible error, we affirm.

       On July 17, 2012, Scott Osburn's car ran out of gas. He and Jacob Mogan

walked to a nearby 7-Eleven. There, they met Jordan Jefferson and Tamara Tryon.

According to Osburn, Jefferson agreed to give Osburn and Mogan a ride to Sedro

Woolley if Mogan helped him buy drugs.
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       When they arrived, Jefferson gave Mogan about $100 to purchase the drugs.

Mogan left. Jefferson locked the car and told Osburn to stay in the car until Mogan

returned.

       After 20 to 30 minutes, Jefferson and Tryon suspected that Mogan had taken the

money. Osburn claimed he feared for his safety. He got out of the car and ran into a

housing development. Jefferson caught up with him just as he was entering a home.

Osburn testified that Jefferson dragged him away from the house while Tryon drove up

in the car. They forced him into the back seat, and Tryon sat on him while Jefferson

drove off. They told Osburn that he had messed with the wrong people.

        Sedro Woolley Police Officer Heather Sorsdal pulled the car over after receiving

reports of an incident. Osburn got out of the car and claimed the people inside were

trying to kill him.

        The State charged Tryon with first degree burglary, first degree kidnapping,

felony harassment, and misdemeanor possession of marijuana. The jury convicted
Tryon offirst degree kidnapping and acquitted her ofthe remaining charges. She

appeals.

        To-Convict Instructions

         Tryon first challenges the kidnapping to-convict instruction. She contends
reversal is warranted because this instruction omitted essential elements. She argues

the State must prove Tryon "(1) knowingly acted without consent; (2) knowingly acted
without lawful authority; and (3) knowingly acted in a manner that substantially
interfered with another's liberty    " Appellant's Br. at 1. She claims the omission of

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these essential elements relieved the State of its burden to prove each element of the

charged offense.

      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)). A to-convict instruction that omits

an element presents an issue of constitutional magnitude that may be raised for the first

time on appeal. State v. Fisher, 165 Wn.2d 727, 753, 202 P.3d 937 (2009). We review

to-convict instructions de novo. Fisher, 165 Wn.2d at 753.

       The to-convict instruction provided:

              To convict the defendant of the crime of kidnapping in the first degree, as
       charged in Count 2, each of the following three elements of the crime must be
       proved beyond a reasonable doubt:
              (1) That on or about July 17, 2012 the defendant intentionally abducted
       Scott Osburn,
              (2) That the defendant abducted that person with the intent
              (a) to hold the person for ransom or reward, or
              (b) to facilitate the commission of Delivery or Possession of a Controlled
       Substance or flight thereafter, or
            (c) to inflict bodily injury on the person, or
             (d) to inflict extreme mental distress on that person or a third person; and
             (3) That any of these acts occurred in the State of Washington.
             If you find from the evidence that elements (1) and (3), and any ofthe
       alternative elements (2)(a), (2)(b), (2)(c), or (2)(d), have been proved beyond a
       reasonable doubt, then it will be your duty to return a verdict of guilty. To return a
       verdict of guilty, the jury need not be unanimous as to which of alternatives
       (2)(a), (2)(b), (2)(c), or (2)(d), has been proved beyond a reasonable doubt, as
       long as each juror finds that at least one alternative has been proved beyond a
       reasonable doubt.
             On the other hand, if, after weighing all the evidence, you have a
       reasonable doubt as to any one of elements (1), (2), or (3), then it will be your
       duty to return a verdict of not guilty.

       The court also instructed the jury on the definitions for "abduct" and "restrain":

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             Abduct means to restrain a person by either secreting or holding the
      person in a place where that person is not likely to be found or using or
      threatening to use deadly force.
              Restraint or restrain means to restrict another's movements without
      consent and without legal authority in a manner that interferes substantially with
      that person's liberty.

      Tryon contends that knowledge that a restraint is unlawful is an essential element

of first degree kidnapping. She argues that the word "abduct" is defined as "to restrain"

a person by threatening to use deadly force. RCW 9A.40.010(1). "Restrain" is defined

as (a) restricting a person's movements, (b) without consent, (c) without legal authority,

(d) in a manner which interferes substantially with his or her liberty. RCW 9A.40.010(6).

       Tryon cites State v. Warfield, 103 Wn. App. 152, 5 P.3d 1280 (2000). There, the

court held that the State was required to prove that the defendants knew they lacked

legal authority to restrain a victim for the charge of unlawful imprisonment. Warfield,

180 Wn.2d at 157. Because unlawful imprisonment is a lesser included offense of first

degree kidnapping, its elements must be included in the crime of kidnapping. See State
v. Porter, 150 Wn.2d 732, 736, 82 P.3d 234 (2004). Tryon thus asserts that the State

was required to prove that she knowingly restrained Osburn. According to Tryon, this

requires proof that she (1) knowingly acted without Osbum's consent, (2) knowingly
acted without legal authority, and (3) knowingly acted in a manner that substantially

interfered with Osbum's liberty.

       But our Supreme Court recently rejected a rule that definitions constitute an

essential element of a crime for purposes of the charging information. State v. Johnson,

180 Wn.2d 295, 302-03, 325 P.3d 135 (2014). The court found the defendant's reliance

on Warfield misguided and limited it to those unique cases where a defendant had a

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good faith belief he or she had legal authority to imprison the victim, as was the case in

Warfield. Johnson, 180 Wn.2d at 303-04.

       Finally, State v. Saunders, 177 Wn. App. 259, 311 P.3d 601 (2013), review

denied, 180 Wn.2d 1015 (2014) controls. There, we rejected the nearly identical claim

made by Tryon in this case. She acknowledges Saunders controls but argues the case

was wrongly decided. She provides no persuasive rationale to depart from Saunders.

Tryon's to-convict instruction error claim fails.

       "Knowledge" Instruction

       Tryon argues in the alternative that the instruction defining "knowledge"

"misinformed the jury that the State did not need to prove Tryon knew the restraint was

unlawful." Appellant's Br. at 18. The instruction stated:

                A person knows or acts knowingly or with knowledge with respect to a fact
       circumstance or result when he or she is aware of that fact circumstance or
       result. It is not necessary that the person know that the fact circumstance or
       result is defined by law as being unlawful or an element of a crime.
                If a person has information that would lead a reasonable person in the
       same situation to believe that a fact exists, the jury is permitted but not required
       to find that he or she acted with knowledge of that fact.
                When acting knowingly as to a particular fact is required to establish an
       element of a crime, the element is also established if a person acts intentionally
       as to that fact.

       Definitional instructions that relieve the State of its burden of proof may be

challenged for the first time on appeal.1 RAP 2.5(a)(3); State v. Peters, 163 Wn. App.
836, 847, 261 P.3d 199 (2011). The State has the burden to prove every element of the

crime beyond a reasonable doubt. InreWinship, 397 U.S. 358, 364, 90 S. Ct. 1068,


       1Tryon challenges for the first time on appeal the knowledge and restraint
instructions.
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25 L. Ed. 2d 368 (1970). It is reversible error to instruct the jury in a manner that would

relieve the State of this burden of proof. State v. Bvrd, 125 Wn.2d 707, 714, 887 P.2d

396 (1995). But jury instructions must be considered in their entirety to determine if

there is reversible error in a specific instruction. State v. Schulze, 116 Wn.2d 154, 167,

804 P.2d 566 (1991). There is no error if the instructions, when viewed as a whole,

adequately explain the law and enable the parties to argue their theories of the case.

Schulze, 116Wn.2dat168.

       The kidnapping to-convict instruction, quoted above, required the jury to find that

Tryon intentionally abducted Osburn. Another instruction defined "restraint" as:

"Restraint or restrain means to restrict another person's movement without consent and

without legal authority in a manner that interferes substantially with that person's

liberty." An instruction defined "intentionally" as: "A person acts with intent or

intentionally when acting with the objective or purpose to accomplish a result that

constitutes a crime."

       The instructions read in their entirety properly required the jury to find that Tryon

intentionally restrained Osburn without his consent, without lawful authority, and with the

objective purpose to accomplish a result constituting a crime. The knowledge

instruction did not mislead the jury because the mental state associated with kidnapping

is defined in terms of intent, not knowledge. In sum, knowledge is not an essential

element of first degree kidnapping. Tryon's knowledge instruction claim fails.

       Citizen's Arrest

       Tryon assigns error to the the trial court's refusal to instruct the jury on the

defense of citizen's arrest.
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       We review the trial court's refusal to give a jury instruction based on the evidence

for an abuse of discretion and the refusal to give a jury instruction based on the law de

novo. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998).

       A defendant is entitled to have the jury fully instructed on the defense theory of

the case when there is evidence to support it. State v. Fernandez-Medina, 141 Wn.2d

448, 461, 6 P.3d 1150 (2000). This is a due process requirement. State v. Koch, 157

Wn. App. 20, 33, 237 P.3d 287 (2010); U.S. Const, amend. XIV; Wash. Const, art I § 3.

The corollary to this rule is that a defendant is not entitled to a jury instruction that is not

supported by the evidence. See State v. Ager, 128 Wn.2d 85, 93, 904 P.2d 715 (1995).

       A private citizen may properly arrest another without a warrant when the citizen

has reasonable and probable cause to believe the other was guilty of a felony. State v.

Harp, 13 Wn. App. 239, 242, 534 P.2d 842 (1975). Tryon proposed a citizen's arrest

instruction: "A citizen's arrest requires reasonable and probable cause to believe the

arrested party guilty of a felony before the arrest will support a search and seizure of the

evidence of a crime."

       She justified the instruction based on an assertion that Osburn committed a

fe|ony_robbery. But the record here demonstrates no facts to support this assertion.

Robbery occurs when a person "unlawfully takes personal property from the person of

another or in his or her presence against his or her will by the use or threatened use of

immediate force, violence, or fear of injury to that person or his or her property or the

person or property of anyone." RCW 9A.56.190.

       Our review of the record indicates no facts to support Tryon's assertion that

Osburn committed robbery or any other felony. To the extent Tryon bases her
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instruction on Osburn's participation in a misdemeanor theft, that claim also fails. The

requirements for a citizen's arrest involving a misdemeanor are not the same as for a

felony. See State v. Garcia, 146 Wn. App. 821, 829, 193 P.3d 181 (2008). And Tryon

never requested a citizen's arrest instruction based on the commission of a

misdemeanor offense. Because there is no evidence to support the citizen's arrest

instruction, the trial court properly refused the instruction.

       For the reasons discussed above, we affirm Tryon's judgment and sentence.

       Affirmed.




WE CONCUR:




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