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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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
RP at 180.
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
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
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.
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 ...