                                                                       FILED
                                                                   JANUARY 4, 2018
                                                              In the Office of the Clerk of Court
                                                             WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                         )
                                             )        No. 34744-3-111
                    Respondent,              )
                                             )
      v.                                     )
                                             )
TODD ROBERT MICHAL,                          )        UNPUBLISHED OPINION
                                             )
                    Appellant.               )

      FEARING, C.J. - Does the driver of a truck unlawfully imprison a known runaway

fifteen-year-old girl when the waif hides in the passenger area of the truck? Because no

evidence showed that Todd Michal would have prevented the teenager from exiting the

car if she requested, we answer in the negative and reverse Todd Michal's conviction for

unlawful imprisonment. In so ruling, we disagree with our sister division's holding in

State v. Billups, 62 Wn. App. 122, 813 P.2d 149 (1991), but agree with our second sister

division's holding in State v. Dillon, 163 Wn. App. 101, 257 P.3d 678 (2011).

                                        FACTS

      This appeal concerns Todd Michal's relationship with fifteen-year-old Wendy

Oldham, a pseudonym. Oldham walked two blocks to Spokane's Ferris High School

from her grandmother's residence during the morning of October 23, 2014. Contrary to
No. 34744-3-111
State v. Michal


the grandmother's and Oldham's parents' expectations, Oldham did not return to the

grandmother's home that afternoon. The parents and grandmother did not see or speak to

Oldham again until January 25, 2015, when Oldham called her grandmother and casually

asked for a ride home. In the interim, Oldham's father notified the Spokane Police

Department of his missing daughter.

      Wendy Oldham's parents divorced before October 2014, although the two

remained on amicable terms. Neither parent suspected the other parent of secreting

Oldham between October 23, 2014 and January 25, 2015. During this window oftime,

Oldham's mother suspected that her daughter cohabitated with defendant Todd Michal,

who resided in Deer Park. We do not know the basis of her suspicion. Neither parent at

any time bestowed permission for Oldham to visit or ride in a car with Todd Michal.

      After phoning her grandmother on January 25, Wendy Oldham relocated to

Bonners Ferry, Idaho, to live with her mother and attend Bonners Ferry High School. On

February 27, Oldham left her mother's residence for a walk and disappeared again.

Oldham's mother suspected Oldham of returning to Todd Michal's home, and the mother

reported Oldham as a runaway to Boundary County, Idaho, law enforcement authorities.

Someone also reported Oldham as a disappeared teenager to Spokane County authorities

along with Oldham's mother's suspicion that Oldham stayed with Michal.

      Spokane County Sheriffs Detective Jeffrey Mitchell phoned Spokane County

Sheriffs Deputy Alan Rollins and requested Rollins visit Todd Michal. Deputy Rollins

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No. 34744-3-111
State v. Michal


went to Michal's residence, and then Rollins arranged a telephone conversation between

Michal and Detective Mitchell. Mitchell asked Michal ifhe knew of Wendy Oldham's

whereabouts. Michal denied knowledge of Oldham's location and suggested she may be

at a former boyfriend's home. Michal expressed a desire to avoid the presence of

Oldham.

       During the telephone call, Detective Jeffrey Mitchell warned Todd Michal that he

may face criminal charges if law enforcement found Oldham in his custody. Mitchell

referenced "harboring a runaway." Report of Proceedings (RP) at 11 7. Harboring a

minor constitutes a crime under certain circumstances, including sheltering the minor and

failing to disclose the location of the minor to law enforcement upon being requested to

do so. RCW 13.32A.080. We do not know whether any facts garnered under

investigation would prove the crime against Michal. The State did not charge this crime.

      During the telephone conversation, Detective Jeffrey Mitchell instructed Todd

Michal to contact law enforcement if Michal learned of Oldham's location. No testimony

established that Mitchell informed Michal of Oldham's age. Deputy Alan Rollins

traveled to the former boyfriend's home and did not find Oldham present at the home.

      On March 19, 2015, Spokane County Sheriffs Deputy Daniel Dutton patrolled

Deer Park and its vicinity at night when he spotted Todd Michal driving his truck.

Deputy Dutton identified Michal's vehicle from earlier encounters. Dutton knew that law

enforcement suspected Michal of harboring Wendy Oldham. Dutton stopped Michal and

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No. 34744-3-III
State v. Michal


approached the driver's side door. He then noticed a passenger lying down on the truck's

front bench seat. One could not have seen the passenger unless standing and peering into

the truck.

       Deputy Daniel Dutton asked Todd Michal to identify his passenger, and Michal

answered only with Wendy's first name. Wendy Oldham confirmed her full name with

Deputy Dutton. Dutton phoned dispatch to confirm Oldham's runaway status, and

Dutton then took Oldham into custody. During the stop, Michal gave no indication to

Deputy Dutton that he intended to return Oldham home, but instead declared that he

planned to drive Oldham to the Bob Mart so she could call her mother. Michal,

nevertheless, possessed a cell phone.

                                        PROCEDURE

       The State of Washington charged Todd Michal with one count of child

molestation in the third degree, one count of unlawful imprisonment, and one count of

commercial sexual abuse of a minor. The charges stemmed from the events occurring

between October 23, 2014, and March 19, 2015. At the commencement of trial, the trial

court granted the State's motion to dismiss counts one and three without prejudice, but

denied the State's motion to sever because Michal did not consent to severance. After a

bench trial, the trial court convicted Michal of unlawful imprisonment.

       The trial court entered the following conclusions of law:

             4. Neither this statute nor the cases interpreting it ... require the

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No. 34744-3-III
State v. Michal


       State to prove that the defendant knew W.E.O. [Wendy Oldham] was under
       16 years of age;
               5.. -.. even if she acquiesced to the confinement, W.E.O. was
       restrained for purposes of the statute because she was inside the defendant's
       vehicle and because the vehicle was moving (making it unsafe to exit);
               6. The Court concludes beyond a reasonable doubt that on or about
       March 19, 2015, the Defendant restrained the movements of W.E.O. in a
       manner that substantially interfered with her liberty, that the restraint was
       accomplished by any means, including acquiescence, that W.E.O. was a
       child under [the] age of 16 years, that neither her parents or guardians
       acquiesced to that restraint, that the restrained occurred without lawful
       authority, that the defendant acted knowingly as to these elements (with the
       exception of the victim's age) ....

Clerk's Papers (CP) at 54.

                                LAW AND ANALYSIS

       On appeal, Todd Michal challenges the sufficiency of evidence to convict him of

unlawful imprisonment. He contends that the trial court heard insufficient evidence to

find that he knowingly restrained Wendy Oldham. He also contends that the trial court

legally erred when concluding that he did not need to know Oldham was under the age of

sixteen.

       We identify two discrete and primarily legal questions on appeal. First, does the

accused, for purposes of unlawful imprisonment, substantially restrict a passenger's

liberty when he transports the passenger in a moving motor vehicle? On appeal, the State

does not contend that Todd Michal restrained Wendy Oldham at any time other than

during the vehicular travel on March 15. Second, must the accused know the alleged

victim to be under the age of sixteen to convict him of unlawfully imprisoning a minor

                                            5
No. 34744-3-III
State v. Michal


because he lacks permission from the minor's parents to hold the minor in his care?

Because we answer the first question in the negative, we do not address the second

question.

       Todd Michal couches his argument in terms of insufficient evidence supporting

his conviction. He claims the State lacked evidence that he substantially interfered with

Wendy Oldham's liberty. Michal presented no testimony at trial. Therefore, the facts on

appeal are essentially undisputed. The question on appeal is whether those facts

constitute a "restraint" within the meaning of the crime of unlawful imprisonment.

       We review the trial court's conclusion oflaw that Michal restrained Oldham

within the meaning of the unlawful imprisonment statute. An appellate court reviews the

trial court's conclusions oflaw de novo. Sunnyside Valley Irrigation District v. Dickie,

149 Wn.2d 873, 880, 73 P.3d 369 (2003). Because we focus on the trial court's

conclusions of law, we do not review the rules of sufficiency of evidence, beyond

recognizing the principle that we construe the evidence in the light favorable to the State.

State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We move directly to the

substantive law and decide whether the facts and their nuances establish unlawful

imprisonment.

       This appeal requires an interpretation of two criminal statutes, RCW 9A.40.010

and .040. The meaning of a statute is a question of law that this court reviews de novo.

Cockle v. Department ofLabor & Industries, 142 Wn.2d 801, 807, 16 P.3d 583 (2001).

                                             6
No. 34744-3-111
State v. Michal


The court's fundamental objective when determining a statute's meaning is to ascertain

and implement the legislature's intent. State v. Alvarez, 128 Wn.2d 1, 11, 904 P.2d 754

(1995). When construing a statute, we consider the natural and contextual meanings that

attach to a term, giving words their usual, ordinary, and commonly accepted meaning.

State v. Manlove, 186 Wn. App. 433,441,347 P.3d 67 (2015). We must strictly construe

a penal statute against the state. State v. Thompson, 38 Wn.2d 774, 779, 232 P.2d 87

(1951).

       One commits the crime of unlawful imprisonment when one "knowingly restrains

another person." RCW 9A.40.040 (emphasis added). This appeal concerns the nature of

restraining another person. The criminal code defines "restrain" as:

              "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. Restraint is "without consent" if it is accomplished by
       ... any means including acquiescence of the victim, if he or she is a child
      less than sixteen years old or an incompetent person and if the parent,
      guardian, or other person or institution having lawful control or custody of
      him or her has not acquiesced.

RCW 9A.40.010(6) (emphasis added). The essence of unlawful imprisonment is

restraint and restriction. State v. Thomas, 35 Wn. App. 598, 603, 668 P.2d 1294 (1983).

The defendant must restrict the victim's movement and substantially interfere in the

victim's liberty. The law does not differentiate between the two concepts of restricting

movement and interfering with liberty.




                                            7
No. 34744-3-III
State v. Michal


       A substantial interference is a "real" or "material" interference with the liberty of

another as contrasted with 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 on other

grounds, 92 Wn.2d 357, 597 P.2d 892 (1979). Presumably the term "real" in this context

does not mean the opposite of unreal, but instead highlights that run of the mill

restrictions of passage in everyday life, such as bumping into a coworker in the hall, does

not constitute a crime.

       In analyzing whether the State proved a restraint, we ignore the age of Wendy

Oldham. The age is only important as to the separate question of whether the State

showed a lack of consent. Even if Wendy Oldham remained in the presence of Todd

Michal without Oldham's parent's consent, the State must still prove that Michal

restricted Oldham's movement in a manner that interfered substantially with her liberty.

State v. Dillon, 163 Wn. App. at 107 (2011 ).

       In deciphering and dissecting what constitutes a restraint, a restriction of

movement, or a substantial interference with liberty, we adopt the mindset of a layperson,

not the mentality of a judge, prosecutor, or defense counsel. We recognize that a

vehicle's passenger, in a strict, physical, and legal sense, experiences a restriction of

movement. But the common understanding of a restriction of liberty or an interference

with movement runs counter to this technical view of "restraint."

       The State postulates that Todd Michal restrained Wendy Oldham because Michal

                                                8
No. 34744-3-III
State v. Michal


could have prevented Oldham from exiting the car. If Oldham requested to leave the

truck, Michal could have continued the forward movement of the truck so as to render

Oldham's egress from the truck unsafe. Nevertheless, the State presented no evidence

that Wendy Oldham did not wish to travel inside the truck or that she felt constrained

inside the truck. The State presented no testimony that Michal compelled Oldham to

enter the truck or forced her to remain inside the truck. The State presented no evidence

that Oldham ever asked Michal to slow the truck so that she could exit the vehicle.

       State v. Billups, 62 Wn. App. 122 (1991), issued by Division One of this court,

diverges from our probe of a common sense understanding of "restraint" and interference

with liberty. We do not fault the trial court for its ruling because the ruling followed the

teaching of Billups. Leon Billups invited two girls, ages ten and eleven, to enter his van

by offering them one dollar. The girls wisely fled and reported Billups' conduct. The

State charged Billups with and convicted him of two counts of attempted kidnapping in

the second degree. To convict Billups, the State needed to prove that Billups sought to

"restrain" the girls as defined in RCW 9A.40.010(6). Division One affirmed the

conviction.

       The principal question in Billups on appeal was whether Leon Billups took

significant steps to be convicted of an attempt to commit a crime. Nevertheless, in a

passage that indirectly addresses what constitutes a "restraint," the court wrote:

              By offering the girls a dollar if they would go to Shilshole with him,

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No. 34744-3-III
State v. Michal


       Billups sought to entice the girls into his van. If the girls had complied,
       their movements would have been restrained by their presence in the van,
       and the restraint would have been "without consent" as they were both
       under age 16 and no parental consent had been given. See RCW
       9A.40.010. Once they were restrained in the van, Billups would have been
       secreting or holding the girls in a place where they were not likely to be
       found. See RCW 9A.40.010(2). Thus, Billups' efforts to entice them into
       the van constituted a substantial step.

State v. Billups, 62 Wn. App. at 126-27.

       We disagree with the terse analysis of "restraint" in State v. Billups. The analysis

ignores the practicalities of vehicular traffic and the household meanings of "restraint,"

"restriction," and "liberty." The faulty reasoning of the Billups opinion comes to light

when one considers four hypotheticals. First, Betty retrieves her child George from

school. George asks his mother to give a ride also to the neighbor boy, Fred. Fred's

parents expected Fred to walk home from school. The parents may have given

permission if asked, but the parents never consented to Betty chauffeuring Fred home. If

Betty allows Fred to ride in the car. Betty restrains the movement of Fred and commits

the crime of unlawful imprisonment. Second, fifteen-year-old runaway Donald hops on a

city bus to travel from the right side of town to the wrong side of town. Once the bus

driver places the bus in first gear, if not earlier when closing the door, the driver

unlawfully imprisons Donald because Donald's parents never granted the driver

permission to ferry their son. Third, James, the Hilton Hotel elevator operator, permits

eleven-year-old Evan ingress into the elevator. Since Evan's parents expected Evan to


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No. 34744-3-111
State v. Michal


climb the four flights of stairs to the hotel room, James commits unlawful imprisonment.

Fourth, a hotel guest enters the elevator and asks James for the twelfth floor. James

mistakenly presses the thirteenth floor button. James restrains and unlawfully imprisons

the guest once the elevator passes floor twelve.

       We need not follow the decisions of other divisions of this court. State v. Schmitt,

124 Wn. App. 662, 669 n.11, 102 P.3d 856 (2004). Therefore, we chose not to follow

Division One's opinion in State v. Billups.

       State v. Dillon, 163 Wn." App. 101 (2011 ), issued by Division Two of this court,

supports our reasoning. The trial court convicted Steven Dillon of first degree

kidnapping, which includes the element of "abducting" in addition to "restraining."

"Abducting" includes secreting a person in place where he is likely not to be found.

RCW 9A.40.010(2). After meeting Chance, a thirteen-year-old boy, in an Internet chat

room, Dillon retrieved Chance from a downtown intersection and drove Chance to his

home. This court reversed Dillon's conviction on the basis that the State failed to show

any restraint. Despite Chance sitting as a passenger in Dillon's moving car, the State

presented no evidence to infer that Dillon compromised the boy's liberty or intended to

restrict the boy's movements. In contrast to the facts in Billups, Dillon did not lure

Chance into the car or take him anyplace other than the intended destination. The court

wrote in contrary to the teaching of Billups:

              Even assuming that [Chance] was somewhat restrained when he got

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1
I
I    No. 34744-3-111

II   State v. Michal


I'          into Dillon's car, it is pure speculation that Dillon would have refused to let
I
            [Chance] get out of the car or return him to the rendezvous point anytime
I           he wanted.
I    State v. Dillon, 163 Wn. App. at 108.
I           State v. Washington, 135 Wn. App. 42, 143 P.3d 606 (2006), with its disparate

     facts, illustrates when an accused unlawfully imprisons the victim by restraining the

     victim's movement inside a car. After an angry altercation, Guy Washington ordered his

     wife, Harmoni, into the car. She entered the car, but left the passenger door open.

     Washington instructed Harmoni to shut the door. She tried to leave, but he grabbed her

     clothing and yanked her back inside the car. Washington then punched Harmoni in the

     stomach, choked her, and bashed her head against the window. He reached across the car

     and pulled the passenger door shut. This court affirmed the conviction of unlawful

     imprisonment. Harmoni' s brief act of independence in leaving the car triggered

     Washington's acts of rage. Washington reacted to Harmoni's resistance to the restraint.

     The facts reported in the decision do not indicate whether Washington drove the car, but

     we consider any movement of the car after the assault to constitute a restraint.

     Washington captured Harmoni inside the car. Our appeal contains no facts showing that

     Todd Michal similarly restrained Wendy Oldham inside the car.

            Foreign decisions affirming convictions for unlawful imprisonment or a related

     crime, such as criminal confinement or unlawful restraint, entail the defendant employing

     threats or force to confine the victim inside a car or a refusal to stop a car when

                                                  12
No. 34744-3-III
State v. Michal


requested. In Stephens v. State, 10 N.E.3d 599, 602 (Ind. Ct. App. 2014), the defendant

ignored the victim's repeated pleas to let her out of the car, refused to stop the car, and

instead grabbed her phone and removed its battery. In State v. Jason B., 111 Conn. App.

359, 361, 958 A.2d 1266 (2008), the victim repeatedly sought to exit the car, but each

time the defendant grabbed her by the arm and pulled her back. In State v. Youngs, 97

Conn. App. 348, 351, 904 A.2d 1240 (2006), after professing his love for the victim, the

defendant dragged her into his vehicle and then employed the automatic door locks to

prevent the victim from exiting the car. Finally, in State v. Ricchetti, 74 Ohio App. 3d

728,729,600 N.E.2d 688 (1991), the defendant did not stop his vehicle when the victim

requested that he do so and instead continued to flee from the police.

       We recognize that this appeal contains bad facts. Law enforcement warned Todd

Michal not to secrete Wendy Oldham. Michal ignored the warning and likely harbored

an underage, impressionable, and vulnerable drifter. Oldham's burying of her body

inside the truck signals that Michal and Oldham understood their conduct as wrongful, if

not criminal. But a guilty conscience does not prove the commission of a crime. Bad

conduct also does not equate to criminal behavior. We do not approve of Todd Michal's

conduct, but conclude that he did not commit unlawful imprisonment.

       Based on the facts of the appeal, one might also ask if Todd Michal "knowingly"

restrained Wendy Oldham. We need not address this question.




                                              13
No. 34744-3-III
State v. Michal


                                     CONCLUSION

       We vacate the conviction of Todd Michal and remand the case to the superior

court for dismissal of the charges against Todd Michal for unlawful imprisonment.

       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.



                                             Fearing, C.J.

WE CONCUR:



    dZdbw.~,[t.
Siddoway, J.



Pennell, J.




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