Appeal from Superior Court of Lincoln County. Docket No: 95-8-00042-1. Date filed: 01/09/96. Judge signing: Hon. John R. Lyden.
Petition for Review Denied July 8, 1997,
Authored by Frank L. Kurtz. Concurring: Dennis J. Sweeney, John A. Schultheis.
The opinion of the court was delivered by: Kurtz
KURTZ, J. Marcus J. Jones appeals his juvenile court convictions for kidnapping in the first degree and assault in the second degree. His appeal raises the following issues: (1) did the State produce sufficient evidence of "restraint" in order to convict Mr. Jones for the crime of kidnapping in the first degree; (2) did the State produce sufficient evidence of "substantial bodily harm" in order to convict Mr. Jones for the crime of assault in the second degree; (3) should the court have ruled that assault in the second degree merged with kidnapping in the first degree; and (4) should the court have dismissed the case based upon inadequate identification of Mr. Jones as the perpetrator. We affirm.
On January 9, 1996, the State of Washington charged Mr. Jones, a juvenile, with second degree assault and first degree kidnapping. On the evening of November 11, 1995, Mr. Jones, John Brown, and several other individuals attended a party at the private residence of Free Green in Davenport, Washington.
Mr. Brown first arrived at the Green residence around 1:00 p.m., remaining there until approximately 3:00 or 4:00 p.m., and returning later that evening. On more than one occasion, Mr. Brown would leave the party and during one of these absences, he obtained a Davenport Police Department assault form for the purpose of reporting a recent assault. When individuals at the party discovered these police department forms on Mr. Brown, they began to accuse him of being a "narc."
Mr. Brown was subsequently beaten by several individuals at the party for approximately two to four hours. While Mr. Green delivered most of the beating, everyone at the party participated in the assaultive behavior. The initial assault took place in the living room of Mr. Green's residence. Later, Mr. Brown was moved to the kitchen, and then to the bedroom of the house.
Over the course of the beating, Mr. Brown was repeatedly punched,
kicked, slapped, placed in a headlock, and had his head slammed against the wall. He was also bitten, beaten with a broom, beaten with plastic coat hangers, stabbed with throwing darts and repeatedly hit with a bar of soap wrapped inside a towel. His life was threatened more than once by Mr. Green.
Mr. Jones participated in the beatings and during the course of the beatings, struck Mr. Brown between four and nine times. At one point during the beatings, Mr. Brown had tears in his eyes and said "I'll do anything for you Free. Just stop beating me." In response, the individuals present laughed at Mr. Brown, and he was then forced to clean up the kitchen and living room areas of the house. Also during the beating, Mr. Brown put his hand on an exterior doorknob in the kitchen, and Mr. Jones said, "What are you doing with your hand on the door? Do you need your ass beat some more?"
Mr. Jones was present in these rooms during the assault.
Eventually, the beatings stopped and Mr. Brown left the residence at approximately 5:30 a.m. He walked directly home, a route that normally took him up to 8 minutes took him 30 minutes to travel in his condition.
Dr. Daniel Husky examined Mr. Brown roughly five and one-half hours later on November 12, 1995. Dr. Husky found that Mr. Brown had multiple bruises and contusions, puncture wounds and a bite. Dr. Husky estimated that given the injuries, it may take Mr. Brown between four and six weeks to heal and he would be up and functioning with discomfort in four to five days. Dr. Husky rated the pain Mr. Brown likely suffered as a "5" on a scale of "1 to 10."
Mr. Brown testified that most of his pain went away within four or five days. But his ribs and kidneys continued to hurt two weeks later.
During the trial, the State's witnesses referred to and identified Mr. Jones by name. One witness specifically identified Mr. Jones:
Q. When you say "Marcus", you mean Marcus Jones, the defendant?
Mr. Jones moved to dismiss both counts at the close of the State's case on the basis of lack of identification of him. The trial court denied the motion and found Mr. Jones guilty on both counts. This appeal followed. Findings of fact and Conclusions of law were entered March 22, 1996. Mr. Jones objected to all findings and Conclusions.
1. Did the State produce sufficient evidence of "restraint" in order to convict Mr. Jones of the crime of kidnapping in the first degree?
Mr. Jones contends that kidnapping requires that the victim be abducted, a term which includes restricting a person's movement without consent and without legal authority. Mr. Jones argues that a kidnapping did not occur because in this case Mr. Brown voluntarily attended the party and he could have left at any time. The State argues that the fact Mr. Brown voluntarily attended the party ...