Opinion
No. 64366-5-I.
Filed: March 14, 2011
Appeal from a judgment of the Superior Court for King County, No. 09-1-03974-3, Mary Yu, J., entered September 29, 2009.
Affirmed by unpublished opinion per Leach, A.C.J., concurred in by Lau and Spearman, JJ.
Gerald Starling appeals from his convictions for second degree robbery and unlawful imprisonment. We reject Starling's contention that the evidence was insufficient to support the unlawful imprisonment conviction or that the conviction must be reversed because it was merely "incidental" to the robbery. We also conclude that Starling waived any challenge to alleged prosecutorial misconduct. We therefore affirm.
FACTS
On the evening of April 24, 2009, Damien Lewis and his girl friend, Denise Anderson, attended a friend's birthday party at a club in Pioneer Square. Lewis parked his 1983 Chevrolet Monte Carlo in a parking lot near Washington Street.
Lewis and Anderson returned to the car at about 1:50 a.m. Lewis started the car and waited briefly for a friend to join them. When the friend did not appear, Lewis left the motor running while he got out to look for him. Anderson remained in the front passenger seat.
As Anderson sat in the car, she saw a man walk back and forth in front of the car. The man, later identified as Starling, then got into the driver's seat, shifted the Monte Carlo into gear, and sped out of the parking lot onto Washington Street. Anderson asked the man, "[W]hat the hell are you doing, this is not your car." The man replied, "[S]hut up, bitch" and threatened to "blow [off]" Anderson's head.
Starling kept driving as Anderson repeatedly asked him to let her out. After turning right at the first intersection, he drove about halfway down the block, stopped the car, and pushed Anderson out onto the street.
Police officers chased Starling south on I-5 and through a residential area of Sea-Tac. The officers arrested Starling after he crashed the car.
The State charged Starling with one count of second degree robbery, one count of unlawful imprisonment, and one count of attempting to elude a pursuing police vehicle. The jury found him guilty as charged, and the court imposed concurrent standard range sentences.
SUFFICIENCY OF THE EVIDENCE
Starling contends that the evidence was insufficient to support his conviction for unlawful imprisonment. A person is guilty of unlawful imprisonment if he or she knowingly restrains another person. "Restrain" means to restrict a person's movements "without consent and without legal authority in a manner which interferes substantially with his liberty." Restraint is "without consent" if it is "accomplished by . . . physical force, intimidation, or deception." A substantial interference must involve a material interference with a person's liberty, "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, 92 Wn.2d 357, 597 P.2d 892 (1979).
Starling claims that the evidence was insufficient to establish a substantial interference with Anderson's freedom. But Anderson testified that Starling jumped into the car, put it into gear, and then sped off. When she protested, Starling told her to "shut up" and threatened to blow her head off. Contrary to Starling's assertion, the car did not merely surge 10 to 15 feet before he "assisted" Anderson in getting out. Rather, as Anderson repeatedly asked to be let out, Starling drove out of the parking lot, turned at the next intersection, and then drove about halfway down the next block before stopping and pushing Anderson out. Until Starling stopped the car, Anderson had no safe means of escape. Viewed in the light most favorable to the State, the evidence was sufficient to establish that Starling substantially restricted Anderson's freedom of movement.
Relying primarily on State v. Green, Starling also contends that the evidence was insufficient to establish unlawful imprisonment because any restraint was merely "incidental" to the robbery. In Green, a prosecution for first degree aggravated murder based on kidnapping, witnesses observed the defendant carry the victim a short distance around the corner, where he stabbed her to death. On review, our Supreme Court considered whether the evidence was sufficient to establish the abduction element of the aggravating crime. Based on the short time and minimal distances involved, the location of the participants when found, the clear visibility of the location, and the total lack of evidence of actual isolation, the court concluded that there was "no substantial evidence of restraint by means of secreting the victim in a place where she was not likely to be found." The court added that the mere "incidental" movement and restraint of the victim was, under the facts of the case, an integral part of the homicide and not "indicia of a true kidnapping."
94 Wn.2d 216, 616 P.2d 628 (1980).
Green, 94 Wn.2d at 222-23.
Green, 94 Wn.2d at 226.
Green, 94 Wn.2d at 227; see also State v. Brett, 126 Wn.2d 136, 166, 892 P.2d 29 (1995) ("[T]he mere incidental restraint and movement of the victim during the course of another crime which has no independent purpose or injury is insufficient to establish a kidnapping.").
To the extent Green requires that the restraint sufficient to maintain a prosecution for unlawful imprisonment be distinct from the restraint inherent in another charged offense, that requirement is satisfied here. Once Starling drove off, forcing Anderson to remain in the car without her consent and transporting her away from the scene of the theft, his restraint of Anderson assumed an independent purpose and also resulted in a separate and distinct injury. Unlike the circumstances in Green, Starling's restraint of Anderson was not a necessary or integral part of the robbery and was therefore sufficient to support his conviction.
See State v. Washington, 135 Wn. App. 42, 50-51, 143 P.3d 606 (2006) (restraint sufficient to establish unlawful imprisonment where defendant held victim in car while he assaulted her).
DOUBLE JEOPARDY AND MERGER
Starling also contends that because it was "incidental" to robbery, his unlawful imprisonment conviction "involves" issues of double jeopardy and merger. But Starling does not demonstrate or even allege that his convictions for second degree robbery and unlawful imprisonment violate double jeopardy or that unlawful imprisonment merges with second degree robbery.
Merger is a doctrine of statutory interpretation "used to determine whether the Legislature intended to impose multiple punishments for a single act which violates several statutory provisions." The merger doctrine applies only
State v. Vladovic, 99 Wn.2d 413, 419 n. 2, 662 P.2d 853 (1983).
where the Legislature has clearly indicated that in order to prove a particular degree of crime (e.g., first degree rape) the State must prove not only that a defendant committed that crime (e.g., rape) but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes (e.g., assault or kidnapping).
Vladovic, 99 Wn.2d at 421.
To convict Starling of second degree robbery as charged in this case, the State had to prove, among other things, an intent to commit theft and the taking of personal property from the person or in the presence of another by the use or threatened use of immediate force, violence, or fear of injury. Second degree robbery is not an elevated offense and does not require proof of unlawful imprisonment. The merger doctrine therefore does not apply.
RCW 9A.56.210; 9A.56.190.
Starling's arguments regarding "incidental" offenses and double jeopardy and merger appear to confuse the "separate and distinct" injury exception to the merger doctrine with the doctrine itself. Under this exception, an offense that has a separate and distinct injury or purpose may be punished separately even if proof of that offense would otherwise elevate the degree of another felony. But the exception does not support the converse proposition:
See State v. Frohs, 83 Wn. App. 803, 815-16, 924 P.2d 384 (1996).
Frohs, 83 Wn. App. at 807 (citing State v. Johnson, 92 Wn.2d 671, 680, 600 P.2d 1249 (1979)).
Where the merger doctrine itself does not apply because proof of another crime (e.g., assault) is not necessary to raise the degree of the additional crime (e.g., unlawful restraint), the fact that a defendant may have used physical force, even the same physical force, to accomplish the unlawful restraint does not mean the merger doctrine is applicable. This is because the Legislature has not — by the enactment of degrees of the crime, each higher degree having stiffer penalties — already taken the "included" crime into account in setting the penalty. Thus, the courts are not precluded from imposing separate penalties for each conviction.
Frohs, 83 Wn. App. at 816; see also State v. Calle, 125 Wn.2d 769, 782, 888 P.2d 155 (1995) (convictions for first degree incest and second degree rape arising from single act of sexual intercourse did not violate double jeopardy).
Under analogous facts, our Supreme Court has rejected the suggestion that an "incidental" offense merged into robbery. In In re Personal Restraint of Fletcher, Fletcher pleaded guilty to first degree assault, first degree robbery, and first degree kidnapping after the codefendant forced his way into a car occupied by two women and then drove the women to a secluded area. Acknowledging that the robbery and kidnapping occurred simultaneously when the codefendant forced himself into the women's car and that the kidnapping was "incidental" to the robbery and did not have an independent purpose, the court rejected Fletcher's claim that the kidnapping merged into the robbery: "Proof of kidnapping is not necessary to prove robbery and the kidnapping conviction did not merge into the robbery conviction." Because unlawful imprisonment is a lesser included offense of kidnapping, Fletcher supports the proposition that Starling's unlawful imprisonment conviction did not merge, even if it was "incidental" to the robbery.
113 Wn.2d 42, 776 P.2d 114 (1989).
Fletcher, 113 Wn.2d at 52.
State v. Russell, 104 Wn. App. 422, 449 n. 61, 16 P.3d 664 (2001).
See also Vladovic, 99 Wn.2d at 421 (kidnapping does not merge into robbery); State v. Louis, 155 Wn.2d 563, 571, 120 P.3d 936 (2005) (kidnapping does not merge into robbery).
PROSECUTORIAL MISCONDUCT
Starling contends that his right to a fair trial was violated when the deputy prosecutor committed multiple instances of misconduct during closing argument. A defendant claiming prosecutorial misconduct bears the burden of establishing that the challenged conduct was both improper and prejudicial. Prejudice occurs only if "there is a substantial likelihood the instances of misconduct affected the jury's verdict." We review misconduct claims in the context of the total argument, the evidence addressed, the issues in the case, and the jury instructions.
State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003).
State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995).
State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005).
Starling contends that the deputy prosecutor committed reversible misconduct during closing argument when she referred to the case as "a prosecutor's dream come true," suggested that Starling was taking the case to trial with the hope that the jury would get caught up "on one of the many red herrings that Defense Counsel has just mentioned," and characterized defense counsel as pursuing "the concept of the red herring or the concept of throwing it up against the wall and seeing what sticks" and "nit-picking the minutia" of the charges. He argues that the deputy prosecutor's comments constituted a personal opinion on his guilt and improperly disparaged defense counsel.
As Starling concedes, however, defense counsel failed to object to any of the challenged comments. Starling has therefore waived the alleged errors unless the arguments were so flagrant and ill intentioned that no instruction could have cured the resulting prejudice.
State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997).
Viewed in context, the deputy prosecutor's reference to "a dream come true" was not a personal opinion on guilt but rather part of a larger argument suggesting that the evidence establishing Starling's guilt was unusually strong. The references to "red herrings" and "nit-picking" were brief and isolated, and the deputy prosecutor's arguments focused primarily on the strength of the State's evidence and the merits of defense counsel's arguments. Under the circumstances, a proper limiting instruction could have neutralized any potential prejudice resulting from the challenged comments. Starling has therefore waived any claim of error on appeal.
Affirmed.