PUBLISHED IN PART
Appeal from Superior Court Snohomish County. Superior Court Cause No: 11-1-00582-2. Date filed in Superior Court: April 26, 2012. Superior Court Judge Signing: Larry E. McKeeman.
Mark D. Mestel, 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. 456] ¶ 1 -- Repossession agent Robin Davis and two co-defendants, while repossessing two cars owned by the same family, forced the driver and a passenger of one of the cars to get out at gunpoint and take them to the second car. Davis was convicted of two counts of kidnapping in the second degree and two counts of assault in the second degree. On appeal, he claims (1) the assault merged with the kidnapping for each victim; (2) the trial court erroneously gave an initial aggressor instruction; (3) the court erroneously permitted rebuttal testimony about repossession industry standards; and (4) the to-convict instruction for kidnapping omitted an essential element. We agree regarding merger and reject his remaining claims. We remand for vacation of the assault convictions and for resentencing, and otherwise affirm.
¶ 2 Robin Davis and Jeffrey Saunders were partners in Allstate Recovery, an automobile repossession business. On September 10, 2010, Davis drove his truck from Auburn, Washington, to Mount Vernon to repossess a Ford Explorer on behalf of a client who had sold two cars to Rachel Valdez. Saunders and Davis's adult son, Chet Davis,  were Davis's passengers. The client was monitoring the location of Rachel Valdez's cars by GPS (global positioning system) and informing Saunders of their location.
¶ 3 Saunders directed Davis to a KFC restaurant in Mount Vernon, where they spotted the Explorer in the [177 Wn.App. 457] drive-through lane. It was evening and starting to get dark. Davis parked near the exit of the drive-through and Saunders got out of the truck to approach the Explorer. Rachel Valdez's husband, Salvador Valdez (Valdez), was driving the Explorer. Valdez's passengers were his sister; niece; and 15-year-old son, J.V. Saunders yelled, knocked, and pressed on the passenger-side window, and ordered Valdez to pull forward. As Valdez drove forward he saw Davis's truck parked in a way that blocked him from passing. Valdez floored the accelerator, jumped the curb, and drove away, almost striking Saunders. Valdez dropped off his sister and niece at their home.
¶ 4 Saunders and Davis then drove to Marysville to attempt a repossession of the second vehicle. En route, they observed Valdez's Explorer ahead of them. Davis followed the car into the parking lot of a Burger King. Valdez and J.V. noticed the truck following them and believed it was the same one from KFC. In the parking lot, Saunders, Davis, and Chet got out of the truck and went to the Explorer. Davis aimed a shotgun at the Explorer while yelling at the occupants to get out. According to J.V. and Valdez, one of the other men had a pistol and aimed it at them while standing in front of the Explorer. J.V. and Valdez got ...