Appeal from Superior Court Snohomish County. Superior Court Cause No: 11-1-00583-1. Date filed in Superior Court: April 27, 2012. Superior Court Judge Signing: Hon. Larry McKeeman.
Jeffrey S. Saunders, pro se.
Casey Grannis (of Nielsen Broman & Koch PLLC ), for appellant.
Mark K. Roe, Prosecuting Attorney, and Mary K. Webber, Deputy, for respondent.
AUTHOR: Spearman, A.C.J. WE CONCUR: Verellen, J., Cox, J.
[177 Wn.App. 260] ¶ 1 The purpose of the " essential elements" rule in the context of a to-convict instruction
is to [177 Wn.App. 261] ensure that the jury is not left guessing at the meaning of an element of the crime and that the State is not relieved of its burden of proving each element of the crime. By contrast, the goal of the " essential elements" rule in the context of a charging document is to give a defendant notice of the nature of the crime charged so the defendant can prepare a defense. In applying the rule we are guided by the purpose to be served. As such, we reject Jeffrey Saunders' argument that his conviction for second degree kidnapping must be reversed under State v. Johnson, 172 Wn.App. 112, 297 P.3d 710 (2012), review granted, 178 Wn.2d 1001 (2013), where we held that the definition of " restrain" was an " essential element" of unlawful imprisonment that must be included in the charging document. Holding that Johnson does not control in this challenge to the to-convict instruction, that the jury was not left guessing at the meaning of an element of the crime, and that the State was not relieved of its burden of proof, we affirm.
¶ 2 On September 10, 2010, in Mount Vernon, Washington, Salvador Valdez, his son J.V., his niece, and his sister were waiting in a Kentucky Fried Chicken drive-through in Valdez's red Ford Explorer. They were approached by Jeffrey Saunders, who, unbeknownst to Valdez, was a " bounty hunter" who, along with Robin Davis and his son, Chet Davis,  had been hired to repossess the Explorer. Saunders yelled at Valdez and directed him to pull forward. As Valdez proceeded through the drive-through lane, he saw Saunders and the Davises standing near a large truck. They told him to get out of the Explorer. But instead, Valdez drove off quickly, going over the curb as he left.
¶ 3 Valdez drove to his sister's home in Mount Vernon where he dropped off his sister and niece. On his way to [177 Wn.App. 262] Stanwood, he stopped at a Burger King. As he was entering the parking lot he saw the same large truck driving behind him. Saunders and Davis got out of the truck and ran toward the Explorer. Davis and Saunders ordered Valdez and J.V. out of the car at gunpoint. Saunders denied brandishing a pistol that was later found in the truck, but all parties agreed Davis was brandishing a rifle. Valdez and J.V. complied. Saunders and Davis explained to two women who witnessed the incident that they were bounty hunters. The women called 911.
¶ 4 Saunders ordered Valdez to put his hands on the car and patted Valdez down. He then took Valdez's wallet and gave it to Davis, telling him to " hold this in case he runs." Saunders told Valdez that he was going to jail. Saunders got into the driver's seat of the Explorer and ordered Valdez, who thought he was being carjacked, into the passenger seat. J.V. was ordered at gunpoint to get into Saunders' truck. Saunders and Davis refused Valdez's request that he and J.V. ride together. Davis then drove J.V. in the truck, following the Explorer driven by Saunders.
¶ 5 While riding in the Explorer, Valdez told Saunders he was diabetic and that he feared he was going into diabetic shock. Saunders drove to a gas station and allowed Valdez to get a drink. In response to the 911 call, the police arrived at the gas station and investigated the incident, which resulted in Saunders and Davis each being charged with two counts of kidnapping and two counts of second degree assault, each count with a special allegation that the defendants were armed with a firearm at the time the crimes were committed. 
¶ 6 Saunders and Davis were tried together. At trial, Saunders testified that he owned Allstate Recovery, a vehicle repossession business. He testified that he and Davis were hired to repossess two of the Valdezes' cars, and [177 Wn.App. 263] that when he approached the Explorer at the Kentucky Fried Chicken, he saw the driver make a hand movement that was consistent with putting the car in gear. According to Saunders, he had to jump back as the Explorer accelerated out of the drive-through. He testified he did not call the
police because he believed the police were biased against repossession agents.
¶ 7 Davis testified that when they approached the Explorer at the Burger King parking lot, it accelerated, nearly running over his son Chet. According to Davis, it was at this point that he decided to ...