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State v. Classen

Court of Appeals of Washington, Division 2

July 24, 2018


          WORSWICK, J.

         Darrell Classen appeals his convictions for felony harassment, first degree kidnapping, two counts of second degree assault, and attempted first degree kidnapping. We hold that (1) kidnapping is a course of conduct crime; (2) under the facts of this case, Classen's first degree kidnapping conviction and attempted first degree kidnapping conviction were based on two separate acts and, therefore, do not violate the prohibition against double jeopardy; and (3) Classen's counsel did not provide ineffective assistance by failing to request a voluntary intoxication instruction or by failing to raise a voluntary intoxication defense.

         However, we hold that his counsel provided ineffective assistance by failing to request an inferior degree offense instruction on one assault charge. Consequently, we affirm Classen's convictions for felony harassment, first degree kidnapping, one count of second degree assault, and one count of attempted first degree kidnapping. We reverse Classen's second degree assault convictions in count IV and remand to the trial court for further proceedings consistent with this opinion.[1]


         I. Background

         Crista Cole was an acquaintance of Classen's. On the morning of September 5, 2015, Classen arrived at Cole's residence near Portland, Oregon as she was entering her vehicle with her infant son. Cole offered to give Classen a ride and Classen accepted, saying that Cole could take him "right down the street." Report of Proceedings (RP) at 79. Classen got in the front passenger seat; Cole's son sat in the back seat in his car seat.

         After driving down the street, Cole asked Classen if he wanted to get out and Classen did not respond. Cole told Classen that he needed to get out of the car, but Classen refused. Classen then began poking Cole's ribs and grabbing her hair. Classen also began calling Cole a "cop" and a "fed." RP at 82. Classen punched Cole in the ribs, head, and face.

         Classen then directed Cole to drive. Using scissors he found in the vehicle, Classen cut off a chunk of Cole's hair. At one point, Classen duct-taped Cole's hands to the steering wheel, but he removed the tape after Cole started crying.

         While Cole continued to drive, Classen took a bandana, rubbed it on his genitals, and put the bandana on Cole's face. Classen also touched Cole's genitals. Classen told Cole that he was going to rape her and her son and threatened to slit her throat. Classen cut Cole's arm with the scissors and hit her with a curling iron.

         Cole drove onto Interstate 205 heading north into Washington. Right after crossing into Washington, Cole's vehicle ran out of gas and she pulled over to the side of the highway. All the while, Classen continued to hit and threaten Cole.

         After pulling over, Cole opened her door and ran onto the highway. Classen exited the vehicle and began to chase Cole. Classen caught Cole and pushed her down. Cole got up and began to run, and Classen again ran after her.

         Cole ran up to a man in a truck and screamed, "Please help me." RP at 100. Classen then grabbed Cole by the neck and pushed her head against the side of the truck. Several passersby stopped as Classen continued to chase Cole. When one of the people who had stopped stepped between Classen and Cole, Cole then ran back to her vehicle and retrieved her son who was still seated in the back seat.

         After retrieving her son, Cole ran in front of a vehicle driven by Eva Scherer. Cole told Scherer that Classen was trying to kill her. Another woman pulled her vehicle to the side of the road behind Scherer's vehicle and Cole got into that vehicle with her son.

         Classen approached Cole and Scherer. As Classen approached, Scherer attempted to prevent Classen from passing her by putting her hand up and asking him to stay by Cole's vehicle. Despite her attempts, Classen continued to approach Scherer. Classen told Scherer that he would "take" her instead of Cole and told Scherer to get in the car. RP at 235. Classen then hit Scherer across the side of her face and ran away.

         Some of the bystanders started to chase Classen, who tried to escape by running. Eventually, two men were able to catch and subdue Classen. They restrained him until the police arrived.

         The State charged Classen with felony harassment, first degree kidnapping, two counts of second degree assault, and one count of first degree attempted kidnapping. Cole was the victim of both kidnappings. Classen's contact with Scherer served as the basis for one of the second degree assault charges (count IV).

         Prior to trial, Classen underwent competency evaluations. Dr. C. Kirk Johnson, a psychologist, conducted one such evaluation and diagnosed Classen with amphetamine use disorder based on "file review and recent history." Clerk's Papers (CP) at 34. Dr. Johnson also reported that Classen stated he had no memory of his behavior on the day of the incident and only remembered "'waking up in the back of a car.'" CP at 32. Classen denied drug and alcohol use to Dr. Johnson. The examiners both determined that Classen was competent to stand trial.

         II. Trial

         At trial, the witnesses testified consistently with the above facts. In addition, Cole testified that prior to the day of the incident she had never had any issues with Classen. Cole stated that on the day of the incident Classen did not at first seem paranoid, but his actions "progressively started getting worse" and he started "saying a bunch of stuff that didn't really make sense at the time." RP at 82, 83.

         Scherer testified that Classen was "talking and talking and talking," that he appeared agitated, that he "made several references to being an undercover cop, and that [Cole] was his test subject and he needed her back." RP at 234. Ronnie Thomas, a bystander who helped detain Classen, testified that Classen kept saying "odd" things like "I'm going to live my life." RP at 135. Thomas also testified that Classen would "count to five" and then attempt to escape restraint. RP at 135.

         Sergeant Blaise Geddry, one of the responding officers, testified that he contacted Classen as Classen sat in the back of a patrol car. Sergeant Geddry said that Classen's

. . . muscles were twitching. He was smacking his lips, as if he were extremely thirsty. He was non responsive to any questions as far as, "What's your name?" He was making weird nonsensical statements and just odd types of noises.

RP at 180.

         Sergeant Geddry further testified that during the course of his work, he often comes in contact with people who are under the influence of intoxicants and that he has come to recognize certain signs people exhibit when they are under the influence of various types of intoxicants. Sergeant Geddry opined that Classen appeared to be under the influence, but the sergeant did not mention which substance might have been affecting Classen.

         Classen's counsel did not propose a jury instruction on voluntary intoxication or a jury instruction on the inferior degree offense of fourth degree assault concerning the assault against Scherer.

         During closing arguments, the State argued the following regarding the second degree assault charge in count IV:

Assault in the Second Degree, Count IV, against Eva Scherer: Same scenario outside the vehicles, Eva is trying to stop him from getting [Cole]. He strikes her, assaults her. What's his intent? Again, we don't have to guess at it because he tells us. He makes it clear. He is going to get [Cole] back in the car. He is going to get Eva. He is assaulting her to further his crime of kidnapping.

RP at 296.

         Regarding the attempted kidnapping charge, the State argued:

Count V, Attempted Kidnapping: Again, this relates to his attempt to get [Cole] back, chasing her across lanes of travel, chasing her across the freeway, all of that that we've talked about. What's he trying to do there? Is he trying to catch her so he can give her a bouquet? No.
He is trying to catch her because he wants her back in the car so she is back in his control, so he can get her away from these good people that have ...

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