                                                                                         LIED
                                                                                  COURT OF APPEALS
                                                                                     DIVISION #,X


      IN THE COURT OF APPEALS OF THE STATE                                       di        S IIRGli          3v
                                                                                  STATE OF WASHINGTON
                                                  DIVISION II

STATE OF WASHINGTON,


                                        Respondent,


          v.




ADRIAN JUAN TOMAS,                                                       UNPUBLISHED OPINION


                                        Appellant.


          HUNT, J. —       Adrian Juan Tomas appeals his jury trial conviction for first degree

kidnapping,' his sentences for his first degree kidnapping and first degree assault convictions,

and one of      his community custody          conditions.    He argues that ( 1) the evidence was insufficient


to support the first degree kidnapping conviction as a separate crime because the restraint

involved       was   merely incidental to the      assault, (   2) the first degree kidnapping and first degree

assault    constituted    same     criminal     conduct   for sentencing    purposes,   and (   3)   the trial   court



exceeded its authority when it imposed a community custody requirement that he undergo a

chemical       dependency    evaluation and      treatment.     The State concedes that the trial court erred in


requiring Tomas to obtain a chemical dependency evaluation and treatment, but it argues that the

trial court should impose an alcohol dependency evaluation and treatment condition in its place.

We affirm the kidnapping conviction and the sentences, but we remand for the trial court to

strike the chemical dependency evaluation and treatment community custody requirement and to

consider imposing an alcohol dependency requirement.



1
    Tomas does       not appeal   his   assault conviction.
No. 44389 -9 -II



                                                                  FACTS


                                              I. KIDNAPPING AND ASSAULT


         On August 4, 2012, while Michael Wiley Lowe was visiting family in Shelton, he and his

 brother - law,"
         in-             Adrian Juan Tomas,                 visited      several    local bars.        1   Verbatim Report of


Proceeding ( VRP)        at   53.    After " last   call,"    Lowe left the bar and attempted to get into Tomas' s


truck because he     was      tired      and wanted    to sleep.      1 VRP    at   56.   Finding the truck' s doors locked,

Lowe climbed into the back of the truck and went to sleep, believing that Tomas would take him

to his ( Tomas' s) house to spend the night when Tomas returned.


         Instead,   when       Tomas       returned    to his truck, he drove to           a rural "   clear cut" area near the



local   prison.   1 VRP       at   81.    Lowe was awakened by Tomas' s " yelling at [ him] and telling [him]

to   wake   up." , 1 VRP       at   57.    Tomas    pulled    Lowe       out of    the truck   and   hit him   with a " pipe."   1


VRP at 59. Lowe attempted to run away, but Tomas chased him. Lowe eventually took the pipe

from Tomas but returned it when Tomas displayed what appeared to be a gun and threatened to

shoot   him. Lowe then hid in the bushes.                     Tomas told Lowe that he could see him and to come


out. When Lowe did not comply, Tomas left in the truck.

                                                            II. PROCEDURE


          The State charged Tomas with attempted first degree murder with a deadly weapon

enhancement,        first     degree       kidnapping, and first degree assault with a deadly weapon

enhancement. The case proceeded to a jury trial.

            The State'   s witnesses       testified   as   described      above.    Lowe further testified that he did not


willingly go to the " clear cut" area with Tomas and that he would not have gone there if he had

not   been asleep in the truck.             1 VRP      at   67.    The State also presented surveillance tapes from a




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No. 44389 -9 -II



Shelton bar showing ( 1)           Lowe        and    Tomas   drinking      together, ( 2)   Lowe leaving the bar and

climbing into the back of Tomas' s truck, and ( 3) Tomas later approaching the truck and driving

away. Tomas did not present any evidence.

          The   jury found      Tomas     not   guilty   of attempted   first degree    murder.     It found him guilty of

first degree    kidnapping        under    RCW 9A.40. 020( 1)(       c) (   kidnapping with intent to inflict bodily

injury) and first degree assault with a deadly weapon enhancement.

          At the sentencing hearing, the State advised the trial court that ( 1) Tomas had no criminal

history; ( 2) the two offenses were not the same criminal conduct for sentencing purposes; and ( 3)

it   should   impose        consecutive   sentences      for these two "      serious   violent"    offenses2 under RCW

                       3'   4
9. 94A. 589( 1)( b).            2 VRP     at   290.    The State    also    asked   the trial    court   to impose "    alcohol




    community custody]          conditions"      because there was evidence that Tomas had been drinking

when he committed the crimes. 2 VRP at 291.




2
     RCW 9. 94A.030( 45)(       a)( v), (vi).



3
     The legislature        amended     RCW 9. 94A.589 in 2014.                 LAws    OF      2014,    ch.   101 §   1.   The

amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
current version of the statute.


4 RCW 9. 94A.589( 1)( b) provides, in part:
          Whenever a person is convicted of two or more serious violent offenses arising
          from separate and distinct criminal conduct, the standard sentence range for the
          offense with the highest seriousness level under RCW 9. 94A.515 shall be
           determined using the offender' s prior convictions and other current convictions
          that are not serious violent offenses in the offender score and the standard
           sentence range for other serious violent offenses shall be determined by using an
           offender score       of zero....           All sentences imposed under this subsection ( 1)( b)
           shall be served consecutively to each other and concurrently with sentences
          imposed under ( a) of this subsection.
     Emphasis added).




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No. 44389- 9- 11



        Tomas     argued       that the two      offenses       were   the    same        criminal   conduct.   Rejecting this

argument, the trial court imposed consecutive sentences because the offenses did not occur in


 exactly the   same     location"      and   the "   criminal   intent" for        each offense was       different. 2 VRP at


294.    The trial      court    also   ordered "       chemical      dependency"            evaluation and treatment as      a



community custody          condition.         Clerk'   s   Papers ( CP)       at    13.     Tomas appeals his kidnapping

conviction, his consecutive sentences, and the " chemical dependency" evaluation and treatment

community custody condition.

                                                           ANALYSIS


                                             I. SUFFICIENCY OF EVIDENCE


        Tomas first argues that the evidence was insufficient to prove the kidnapping charge

because the    restraint   involved      was '       merely incidental '           to the    assault.    Br. of Appellant at 6


 quoting State    v.   Green, 94 Wn.2d 216, 227, 616 P. 2d 628 ( 1980)).                             Disagreeing, we hold that

the incidental restraint doctrine does not apply under these facts.

        In reviewing an insufficient evidence claim, we review the evidence in the light most

favorable to the State and determine whether any rational trier of fact could have found the

elements of the charged crime beyond a reasonable doubt. State v. Brown, 162 Wn.2d 422, 428,

173 P. 3d 245 ( 2007).         We weigh all reasonable inferences from the evidence in the State' s favor


and most strongly against the defendant. Brown, 162 Wn.2d at 428.

        Abduction is       an element of        first degree     kidnapping.         RCW 9A.40. 020( 1).        Abduction can


take three forms, but       each    form necessarily involves                restraint.      RCW 9A.40. 010( 1);    Green, 94


Wn.2d   at   225. "    When the State presents only evidence of conduct that was merely incidental to

the commission of another crime, no rational trier of fact could find that the evidence proves



                                                                 4
No. 44389 -9 -II



beyond     a reasonable         doubt that the    conduct was a restraint."                State v. Berg, 177 Wn. App. 119,

136, 310 P. 3d 866 ( citing Green, 94 Wn.2d                    at   229 -30), review granted in part, 179 Wn.2d 1028


 2014).      Whether this " incidental          restraint     doctrine" applies is a " fact- specific determination."


Berg, 177 Wn. App. at 130, 136 ( citing State v. Elmore, 154 Wn. App. 885, 901, 228 P. 3d 760,

review denied, 169 Wn.2d 1018 ( 2010)).


           We have applied this doctrine only when the kidnapping' s restraint and the non-

kidnapping offense are essentially contemporaneous and the defendant' s movement of the victim

was either nonexistent or negligible;                  such   is   not    the   case   here. 5   Here, the kidnapping restraint

clearly exceeded what we have previously recognized as merely incidental to the other offense:

Tomas deliberately drove Lowe out of town to a secluded, private area before assaulting him.

Unlike the cases involving incidental restraint, the restraint did not occur in a private area merely

because that is where the victim was at the time of the assault; nor did Tomas move Lowe only a

                                                   6
short     distance before assaulting him.               Accordingly, we hold that the evidence was sufficient to

prove     the   kidnapping      charge    because the    restraint        it involved     was not "'   merely incidental "'7 to



5
    See   e. g.,   State   v.   Korum, 120 Wn.           App.       686, 690 -92, 707, 86 P. 3d 166 ( 2004) (            restraint

incidental to robberies when defendant restrained victims inside their homes to facilitate home
invasion        robberies), affd     in   part, rev 'd   in   part,      157 Wn.2d 614, 141 P. 3d 13 ( 2006);          Berg, 177
Wn. App. at 123- 24, 136 -38 ( restraint incidental to robbery when defendants restrained robbery
victim     inside his workshop            while   defendants took property from his nearby home);                        see   also

Green, 94 Wn.2d at 224, 226 ( defendant moved murder victim 50 to 60 feet to open loading
dock that was visible from nearby public areas and apartments).

6 See, in contrast, the facts in the cases cited in preceding footnote 5.
7
    Br. of Appellant at 6 ( quoting Green, 94 Wn.2d at 227).




                                                                      5
No. 44389- 9- 11



                 8
the   assault.



                                    II. SAME CRIMINAL CONDUCT


          Tomas next argues that the trial court erred in concluding that the kidnapping and assault

were not same criminal conduct. Again, we disagree.

          We review a trial court' s determination of the same criminal conduct under RCW


9. 94A.589( 1)( a) for abuse of discretion or misapplication of the law. State v. Mutch, 171 Wn.2d

646, 653, 254 P. 3d 803 ( 2011).    A trial court abuses its discretion when its decision is manifestly

unreasonable or based on untenable grounds. State v. Powell, 126 Wn.2d 244, 258, 893 P. 2d 615

 1995).    Such is not the case here.




8 We note that other divisions of our court have rejected the incidental restraint doctrine and have
refused   to consider the alleged incidental nature of the restraint. See e. g., State v. Phuong, 174
Wn. App. 494, 536 -37, 541 -42, 299 P. 3d 37 ( 2013), petition for review filed, No. 88889 -2
 Wash. May 31, 2013). Nevertheless, we have expressly adhered to this doctrine in Berg, 177

Wn. App. at 130 -31.
          We note, however, that on May 27, 2014, our Supreme Court heard argument in Berg on
the following issue:
          Whether in a prosecution for first degree robbery and first degree kidnapping, the
          evidence of kidnapping is insufficient if it shows that the restraint of the victim
          was only " incidental" to the commission of the robbery.
Supreme Court Issues: May Term 2014, WASH. COURTS,
http: / www.courts.wa.gov /appellate trial_courts/ supreme/ issues/ ?fa= atc_ supreme_ issues. display.
        /
  fileID= 2014May ( last visited July 15, 2014) ( No. 89570 -8, State ( petitioner) v. Berg & Reed
 respondents)).

          Regardless of whether the Supreme Court approves or rejects Berg' s incidental restraint
doctrine, Tomas' s challenge to the restraint component of his kidnapping conviction would still
fail. If the Supreme Court affirms our incidental restraint rationale in Berg, as we explain above,
the facts underlying his kidnapping and assault convictions do not fall within the doctrine. And

if the Supreme Court in Berg rejects the incidental restraint doctrine, then Tomas can no longer
use this doctrine to challenge the sufficiency of evidence supporting his kidnapping conviction.




                                                    6
No. 44389- 9- 11




               I]n sentencing serious violent offenses, the crimes will be sentenced consecutively to

each other      if they    arise   from ` separate    and   distinct    criminal conduct.'    That standard is defined to


be the    same        as   the `   same    criminal   conduct'      standard    of   RCW 9. 94A. 589( 1)(      a)."   State v.


Kloepper, 179 Wn.            App.     343, 356, 317 P. 3d 1088 ( footnote            omitted) (   citing State v. Brown, 100

Wn.   App.      104, 112 -15, 995 P. 2d 1278 ( 2000),           aff'd in part and rev 'd in part, 147 Wn.2d 330, 58

P. 3d 889 ( 2002)),          review    denied, 327 P. 3d 55 ( 2014).            RCW 9. 94A. 589( 1)(      a)   defines "   same




criminal conduct" as " two or more crimes that require the same criminal intent, are committed at

the   same     time   and place, and       involve the      same victim."      If any one of these elements is not met,

the offenses are not same criminal conduct. State v. Porter, 133 Wn.2d 177, 181, 942 P. 2d 974

 1997).      We narrowly construe the same criminal conduct analysis to disallow most assertions of

same criminal conduct. State v. Wilson, 136 Wn. App. 596, 613, 150 P. 3d 144 ( 2007).

          A person is guilty of first degree kidnapping when he intentionally abducts a person with

intent to inflict      bodily injury.       RCW 9A.40. 020( 1)(         c).   Tomas completed first degree kidnapping

when he took Lowe into the woods with intent to assault him, regardless of whether Tomas ever


followed through with his intent to assault Lowe; thus, the kidnapping and the assault did not

occur     at   the    same    time.       See State   v.   Larry,   108 Wn.      App.    894, 916, 34 P. 3d 241 ( 2001)


 kidnapping and robbery of same victim are not same criminal conduct when kidnapping

 occurred over a period of time and in several locations, whereas the robbery occurred at a single

time    and place, not         the   same    as   that involved in the        kidnapping "), review denied, 146 Wn.2d

 1022 ( 2002).        Accordingly, we hold that the trial court did not abuse its discretion in finding that

the two offenses were not the same criminal conduct under RCW 9. 94A.589( 1)( a).




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No. 44389 -9 -II



                                     III. COMMUNITY CUSTODY CONDITION


         Finally,    Tomas       argues       that   the "   chemical   dependency"         evaluation       and   treatment



community custody condition was improper because the trial court failed to make a chemical
                                                                             9
dependency finding         as required under         RCW 9. 94A. 607( 1).        Br.   of   Appellant   at   11.   The State


concedes that the trial court erred in imposing this " chemical dependency" requirement and asks

us to remand to the trial court to strike this condition and to impose instead an alcohol treatment

requirement.        Br.   of   Resp' t   at   22.    Although the record shows that alcohol use may have

contributed to Tomas' s offenses, it does not show that Tomas had any chemical dependency

other than alcohol.



          Accordingly, we accept the State' s concession and remand for the trial court to strike the

chemical dependency evaluation and treatment requirement. Because the record would support a

finding that alcohol contributed to Tomas' s offenses, the trial court may consider imposing an

alcohol     evaluation         and       treatment      requirement     on       remand,      if   supported        by   the




9
    RCW . . 94A.607( 1) provides:
        9
          Where the court finds that the offender has a chemical dependency that has
          contributed to his or her offense, the court may, as a condition of the sentence and
          subject to available resources, order the offender to participate in rehabilitative
          programs or otherwise to perform affirmative conduct reasonably related to the
          circumstances of the crime for which the offender has been convicted and
          reasonably necessary or beneficial to the offender and the community in
          rehabilitating the offender.




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No. 44389- 9- 11



necessary findings. We otherwise affirm Tomas' s sentences and his kidnapping conviction.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




We   concur:
