                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          June 20, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 48710-1-II

                               Respondent,

        v.

 GEORGE ANTONIO WRIGHT,                                       UNPUBLISHED OPINION

                               Appellant.


       LEE, J. — Gregory Antonio Wright appeals his convictions for first degree kidnapping and

attempted second degree assault, arguing that the State presented insufficient evidence to establish

the essential element of “abduction” in the charge of kidnapping. In a Statement of Additional

Grounds (SAG), Wright asks us to review whether the State presented sufficient evidence to

convict him of attempted second degree assault.

       We hold that Wright’s sufficiency challenges to his convictions fail. Therefore, we affirm.

                                              FACTS

       Kristina Nystrom was a mental health therapist who provided therapy to inmates in the

Clark County Jail. Nystrom met with Wright in the evening of January 13, 2015, in a private

treatment room. A jail guard escorted Wright to the treatment room but did not enter the treatment

room with Wright and Nystrom. The treatment room had chairs for the counselor and patient, “a

big, heavy desk,” an exam table, and various medical books and supplies. 3 Verbatim Report of
No. 48710-1-II


Proceedings (VRP) at 317. The room had no windows, but had “a heavy metal door” that was

propped open and would automatically lock when closed. 3 VRP at 318. Across the hallway from

the treatment room was a guard station.

       Wright sat in the chair next to the door and talked with Nystrom for 10 to 15 minutes.

Without warning, Wright angrily said something that sounded like, “Well, what can you do for me

then” and stood up. 3 VRP at 324. “[I]n one motion[, Wright] kicked the doorstop out, pushed

the door closed, and hit [Nystrom] in the face” with a closed fist. 3 VRP at 325. The punch

knocked Nystrom to the ground.

       Wright was positioned between Nystrom and the door. When Nystrom pushed herself back

up, Wright came at her “with his hands and tried to put them around [her] neck.” 3 VRP at 327.

Nystrom said, “[H]e ended up putting his hands around my neck,” but she “squirmed backwards

and away.” 3 VRP at 327. Wright “started pulling the desk in front of the door to block the door

from being opened.” 3 VRP at 327. Nystrom moved behind the desk to push it away, screaming

loudly. Wright then reached over the desk for Nystrom, grabbed her sweater by the neck, and tried

to pull her across the desk, stretching the neck of her sweater. At that point, Nystrom could hear

the guards coming, but Wright had managed to move the desk in front of the door.

       Officer Duncan Paddy was on duty at the guard station across the hall from the treatment

room with several other law enforcement personnel when he heard Nystrom screaming. Initially,

Officer Paddy and the other law enforcement personnel could not tell where the screaming was

coming from, but they soon isolated the direction and realized the door to the treatment room was

closed. It was not normal for the door to the treatment room to be closed. Officer Paddy knew the

door would be locked, and he used the keys he had with him to unlock the door. He tried opening



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No. 48710-1-II


the door slowly, but there was enough resistance that the door pushed closed again. Officer Paddy

then hit the door with a lowered shoulder and the door “flew open.” 3 VRP at 371.

       Upon entry, Officer Paddy lunged across the desk to secure Wright. Wright did not resist,

and Officer Paddy was able to secure him against the exam table. Four other law enforcement

personnel entered the room behind Officer Paddy. Officer Paddy testified that the time it took him

to respond was no more than 15 seconds.

       Although Wright was not successful in cutting off Nystrom’s trachea or her air passage, he

touched her neck “forcefully” with “[t]he palm of his hand and his fingers and thumb. 3 VRP at

340. This contact left a bruise on Nystrom’s neck.

       Nystrom testified that she was afraid for her life, and “I was so afraid I wet myself.” 3

VRP at 326. Nystrom was not sure how long the entire incident lasted, but she estimated about 30

seconds.

       Wright was charged by amended information on February 1, 2016, with first degree

kidnapping and attempted second degree assault. After trial, the jury found Wright guilty on both

counts. The jury also found by special verdict that in committing kidnapping in the first degree,

Wright intended to facilitate the commission of second degree assault or flight thereafter.

       The trial court noted on the felony judgment and sentence that the attempted second degree

assault conviction merged with the first degree kidnapping conviction. Wright was sentenced to

186 months. Wright appeals.




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No. 48710-1-II


                                            ANALYSIS

A.     SUFFICIENCY OF THE EVIDENCE

       Wright argues the State presented insufficient evidence to convict him of first degree

kidnapping because the evidence failed to establish that his actions constituted an “abduction” of

Nystrom. Br. of Appellant 5. In a Statement of Additional Grounds (SAG), Wright requests that

we review the sufficiency of the evidence to convict him of attempted second degree assault. We

hold that sufficient evidence supports Wright’s conviction on both counts.

       Evidence is sufficient to support a conviction if, viewing the evidence in the light most

favorable to the State, any rational trier of fact can find the essential elements of the crime beyond

a reasonable doubt. State v. Houston-Sconiers, 188 Wn.2d. 1, 15, 391 P.3d 409 (2017). All

reasonable inferences from the evidence are drawn in favor of the State and interpreted “most

strongly” against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A

claim of insufficiency “‘admits the truth of the State’s evidence and all inferences that reasonably

can be drawn therefrom.’” Houston-Sconiers, 188 Wn.2d. at 15 (quoting Salinas, 119 Wn.2d at

201). Circumstantial and direct evidence are equally reliable. State v. Moles, 130 Wn. App. 461,

465, 123 P.3d 132 (2005), review denied, 157 Wn.2d 1019 (2006). We defer to the trier of fact on

issues of conflicting testimony, witness credibility, and persuasiveness of the evidence. State v.

Fiser, 99 Wn. App. 714, 719, 995 P.2d 107, review denied, 141 Wn.2d 1023 (2000).




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No. 48710-1-II


       1.      First Degree Kidnapping

       Wright argues that the evidence failed to show that his actions constituted “abduction”

because the evidence did not show that he “secreted or held Nystrom in a place she was not likely

to be found” nor did the evidence show that he “restrained Nystrom by use or threatened use of

deadly force.” Br. of Appellant at 5-7. We hold that Wright’s challenge fails because the evidence

presented was sufficient for any rational trier of fact to find beyond a reasonable doubt that Wright

restrained Nystrom with threatened use of deadly force, thereby establishing the essential element

of “abduction” to the kidnapping charge. Houston-Sconiers, 188 Wn.2d. at 15.

               a. Legal principles

       A person is guilty of kidnapping in the first degree when he or she “intentionally abducts

another person with intent: . . . (b) [t]o facilitate commission of any felony or flight thereafter; or

(c) [t]o inflict bodily injury on him or her.” RCW 9A.40.020(1). A person is abducted when he

or she is restrained “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). See also

State v. Berg, 181 Wn.2d 857, 868, 337 P.3d 310 (2014) (“abduction can be proved in one of two

ways: (1) restraint by secreting or holding a person where she is not likely to be found or (2)

restraint by means of deadly force or threat of deadly force.”). A person is restrained where his or

her movements are restricted “without consent and without legal authority in a manner which

interferes substantially with his or her liberty.” RCW 9A.40.010(6). “Deadly force is force which

is the intentional application of force through the use of firearms or any other means reasonably




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No. 48710-1-II


likely to cause death or serious physical injury.” CP at 162 (unchallenged Jury Instruction 10a

defining deadly force).

               b. Restrained by Threatened Use of Deadly Force

       Wright argues that the evidence presented did not establish “abduction” because the

evidence did not show that he restrained Nystrom with use or threatened use of deadly force. Br.

of Appellant at 5. In support, Wright points to what he did not do—he did not use a firearm, he

did not restrict Nystrom’s airway, and he only inflicted scrapes and bruises. We disagree.

       The fact that Wright did not use a firearm does not matter, as “one can threaten or use

deadly force during a kidnapping without using a deadly weapon.” State v. Lopez, 142 Wn. App.

341, 348–49, 174 P.3d 1216 (2007), review denied, 164 Wn.2d 1012 (2008). Nor does it matter

that he only inflicted scrapes and bruises and did not successfully restrict Nystrom’s airway, as

“one does not have to have the actual capability to inflict deadly force in order to threaten to use

it within the meaning of abduction.” State v. Majors, 82 Wn. App. 843, 847, 919 P.2d 1258 (1996),

review denied, 130 Wn.2d 1024 (1997).

       Here, viewed in the light most favorable to the State, the evidence showed that Wright

closed the door causing it to lock and impede the officers on duty from coming to Nystrom’s aid,

he stood between Nystrom and the door, and he moved the desk in front of the door to further

impede the officers’ assistance. The evidence also showed that Wright (1) punched Nystrom in

the face; (2) grabbed her neck with the palm, thumb, and fingers of his hands with enough force

to leave bruising on her neck and she had to “squirm[ ] backwards and away” to get free; and (3)

continued to reach for her neck, stretching the neck of her sweater. 3 VRP at 327. The evidence

further showed Nystrom was afraid her life was in jeopardy. When viewed in the light most



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No. 48710-1-II


favorable to the State, this evidence was sufficient to permit any rational trier of fact to find that

Wright restrained Nystrom with threatened use of deadly force beyond a reasonable doubt.

Houston-Sconiers, 188 Wn.2d. at 15; Berg, 181 Wn.2d at 868.1

       2.      Attempted Second Degree Assault

       In a SAG, Wright requests that we review the sufficiency of the evidence to convict him

of attempted assault in the second degree. We hold that the State presented sufficient evidence to

convict Wright of attempted second degree assault.

       “A person is guilty of an attempt to commit a crime if, with intent to commit a specific

crime, he or she does any act which is a substantial step toward the commission of that crime.”

RCW 9A.28.020(1). A person is guilty of assault in the second degree if he or she, “[a]ssaults

another by strangulation or suffocation.” RCW 9A.36.021(1)(g). “‘Strangulation’ means to

compress a person’s neck, thereby obstructing the person’s blood flow or ability to breathe, or

doing so with the intent to obstruct the person’s blood flow or ability to breathe.” RCW

9A.04.110(26).




1
 Wright also contends that the evidence did not establish “abduction” because the evidence did
not show that he “secreted or held Nystrom in a place she was not likely to be found.” Br. of
Appellant at 5-6. As explained above, “abduction can be proved in one of two ways: (1) restraint
by secreting or holding a person where she is not likely to be found or (2) restraint by means of
deadly force or threat of deadly force.” Berg, 181 Wn.2d at 868. Thus, because we hold that the
evidence was sufficient to permit any rational trier of fact to find that Wright restrained Nystrom
with threatened use of deadly force beyond a reasonable doubt, we do not address this argument.


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No. 48710-1-II


       Here, the evidence showed that Wright grabbed Nystrom’s neck with the palm, thumb, and

fingers of his hands with enough force that he left bruising on her neck. From the evidence

describing Wright’s actions and Nystrom’s bruising, a rational trier of fact could reasonably infer

that Wright compressed Nystrom’s neck and obstructed sufficient blood flow to cause bruising.

       The evidence further showed that after Nystrom “squirmed backwards and away,” Wright

continued to reach for her neck, causing the neck of her sweater to stretch. 3 VRP at 327. From

this evidence, a rational trier of fact could reasonably infer that Wright intended to strangle

Nystrom.

       Therefore, admitting the truth of this evidence and the reasonable inferences that can be

drawn from it in favor of the State, any rational trier of fact could find beyond a reasonable doubt

that Wright intended to compress Nystrom’s neck and obstructed, or intended to obstruct, her

blood flow or ability to breathe.          RCW 9A.04.110(26), RCW 9A.28.020(1), RCW

9A.36.021(1)(g); Houston-Sconiers, 188 Wn.2d. at 15. We hold that the State presented sufficient

evidence to convict Wright of attempted second degree assault.

B.     APPELLATE COSTS

       Wright requests that we decline to impose appellate costs against him if the State prevails

on this appeal and makes a proper request. The State responds by stating that it does not intend to

seek costs if it prevails on this appeal. Accordingly, appellate costs will not be imposed.




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No. 48710-1-II


       We affirm.

       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.



                                                                    Lee, J.
 We concur:



                   Maxa, A.C.J.




                     Sutton, J.




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