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State v. Xaykosy

May 12, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
SAYSAMONES S. XAYKOSY, B.D. 02-18-81 APPELLANT. STATE OF WASHINGTON, RESPONDENT, V. KAREN A. REYES, B. D. 12-31-80 APPELLANT.



Appeal from Superior Court of King County. Docket No: 96-8-02268-5. Date filed: 06/27/96. Judge signing: Hon. Robert S. Lasnik.

Authored by Walter E. Webster. Concurring: H. Joseph Coleman, Ronald E. Cox.

The opinion of the court was delivered by: Webster

WEBSTER, J. -- A person who abducts another is guilty of kidnapping. To abduct, one must secret or hold the victim in a place where he is not likely to be found. Yet a perpetrator secrets a victim by detaining him in a place unlikely to be found, even when that place is public. What is more, a perpetrator can secret a victim even if the police can find the victim through reasonable means. Here, after a car-jacking, the perpetrators parked the car in an apartment complex parking lot unfamiliar to the parents. Leaving an eight month and a twenty seven month old child strapped in their car seats, they rolled up the car windows, causing condensation to settle on the windows. A person who later parked next to the car did not hear or see the children. The authorities did not find the children until a perpetrator led them to the car. This evidence is sufficient to establish that the victims were detained in a place where they were unlikely to be found. The evidence is also sufficient to establish that both defendants intended to encourage the crime, and are guilty as accomplices. Consequently, we affirm their kidnapping convictions.

FACTS

Saysamoes Xaykosy, Karen Reyes, and James Ung decided to skip school and visit a friend, Tuan Dang. The four decided to go to Crossroads Shopping Center, but missed the bus. Dang and Ung noticed that a parked car had its keys in the ignition. They decided to steal the car. Xaykosy told them it was a crazy idea because a baby was strapped in its car seat inside the car; actually, there were two children, an eight month old, and a twenty seven month old, both strapped in their car seats. After a short Discussion, Ung and Dang told Reyes and Xaykosy that they were going to steal the car, after which they would pick up Reyes and Xaykosy, who should walk on ahead.

Reyes and Xaykosy started walking ahead. Dang and Ung jumped into the car, alerting the child's mother and her friend. The friend hung on to the car, and Xaykosy saw her dragged along before being hurled to the street. Dang sped away, then slowed for Xaykosy and Reyes. Ung opened the rear passenger door and yelled, "Get in! Get in!" *fn1 Xaykosy jumped in first, followed closely by Reyes; they knew that there was at least one baby in the car and possibly knew of both. *fn2 Dang entered the highway, then exited, eventually parking the car in a stall at an apartment complex. Reyes "assisted in selecting the general location where the car and the babies were to be abandoned." *fn3

The four perpetrators rolled up the windows, got out, and closed the doors. Dang buried the keys in some nearby beauty bark. They caught a bus to Crossroads Shopping Center, then visited a friend. Reyes told the friend that they had stolen a car. The perpetrators went to play pool. Then they returned to their respective homes.

At 5:45 p.m. that evening, a person drove into the parking lot where the perpetrators had parked the stolen car. Although he parked next to the car, he did not see or hear the babies. The car's heavy, damp air had caused condensation to settle on the windshield. Around that same time, the police contacted Dang. Dang led police to the car. They recovered the dehydrated, lethargic babies.

When Reyes learned that police had contacted Dang, she contacted the friend to whom she had admitted stealing the car. She asked the friend to lie for her, and tell the police that she and the friend were together all day. In a statement to police, however, Reyes admitted to being in the stolen car with the two babies. Xaykosy, in a statement to police later that night, indicated "that she knew they had abandoned the babies in circumstances where they might be at grave risk of harm and might not be found in the near future." *fn4

Dang and Ung pleaded guilty to first degree robbery and two counts of second degree kidnapping; they testified at the fact finding. After that hearing, the court entered findings and Conclusions, finding Xaykosy and Reyes guilty of taking a motor vehicle and two counts of second degree kidnapping. They both appeal their kidnapping convictions.

DECISION

Sufficiency of the Evidence: Abducting

"A person is guilty of kidnapping in the second degree if he intentionally abducts another person under circumstances not amounting to kidnapping in the first degree." *fn5 Abduct means to restrain a person by "secreting or holding him in a place where he is not likely to be found." Xaykosy argues that because the perpetrators parked the car with the children in a busy parking lot near a child care center, the evidence is insufficient to establish secreting or holding the victims in a place where they were not likely to be found. *fn6 In the same vein, Xaykosy assigns error to finding thirteen: "The car was parked in a location where the babies were not likely to be found in a timely manner." *fn7

In State v. Missmer, *fn8 the defendant accosted a 14 year old girl at a park and asked her whether she would like to help organize a first aid class for $1.60 per hour. The girl left with him, and they spent approximately half an hour driving around the main thoroughfares of Olympia and Tumwater. His car ran out of gas, and a deputy sheriff came upon the girl and the car, eventually arresting Missmer. When appealing his conviction for second degree kidnapping under an earlier version of the kidnapping statute, Missmer contended that he did not conceal the victim because they only went on well-traveled thoroughfares. Yet the court noted that "conceal" does not necessarily mean that the "concealed individual or hidden object may not be located or found by reasonable means of discovery." *fn9 In this regard, the court ...


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