Court: Court of Appeals of Washington; February 6, 1998; Washington; State Appellate Court
Jonathan Allen Taylor appeals his convictions for second-degree assault and second-degree kidnapping, arguing violations of double jeopardy and merger doctrine, and seeking resentencing for the kidnapping conviction due to alleged errors in weapon enhancement and offender score calculation. The case stems from a November 1995 incident where Taylor assaulted Chris Weiler and Rodney Murphy with a rifle. Taylor and an accomplice, Michael Nicholson, forced the victims to drive to a park, where they robbed Murphy. Taylor was charged with multiple offenses, including second-degree assault and first-degree kidnapping, with the State requesting deadly weapon enhancements for both charges.
At trial, Taylor requested that the State specify which act it relied upon for the assault charge, but the court permitted the jury to convict based on either act of assault without requiring unanimity on a singular act. The jury found Taylor guilty of both charges and confirmed he was armed during the offenses. At sentencing, Taylor received a 113-month sentence, which included consecutive weapon enhancements, based on an offender score of six.
On appeal, Taylor contends that the assault and kidnapping convictions should merge due to being based on the same criminal conduct, asserting that this leads to double jeopardy concerns. He also claims inadequate notice regarding the weapon enhancement sought by the State for the kidnapping charge. The court affirms the convictions but identifies sentencing errors, ordering a remand for resentencing.
The jury found Taylor guilty of assaulting Murphy, but the verdict did not specify whether it was based on Taylor's liability for Nicholson's gunpoint conduct during the kidnapping or the shooting at the car. Since evidence supported either possibility, the ambiguity does not invalidate the conviction, as unanimity on the means of committing the crime is not required when substantial evidence exists for each alternative. Taylor argues that the conviction should be interpreted with lenity, favoring the defendant, particularly viewing the assault as linked to the kidnapping incident.
Regarding double jeopardy, Taylor asserts that the assault and kidnapping convictions are legally and factually identical, which would violate protections against multiple prosecutions for the same offense. In Washington, double jeopardy applies if two offenses are identical in law and fact; however, if one offense includes elements not present in the other, double jeopardy does not bar convictions. The analysis involves comparing the elements of second-degree assault, which can occur in three ways, and second-degree kidnapping, defined by specific criteria that do not overlap entirely with assault. The third method of assault, involving putting someone in apprehension of harm, and kidnapping involving the use of deadly force do not share the same legal elements, allowing for separate convictions.
To establish second degree kidnapping, it is not necessary to instill fear or apprehension of harm in the victim, unlike in second degree assault. Conversely, a person can commit an assault without perpetrating a kidnapping. A kidnapping can involve threats or the use of deadly force without necessitating a deadly weapon. Deadly force is defined as force that can cause death or substantial bodily harm. The definition of a deadly weapon includes firearms and any device capable of inflicting serious harm. The distinct legal elements of second degree kidnapping and second degree assault mean that double jeopardy protections do not prevent concurrent convictions for both offenses.
Regarding the merger doctrine, which prevents separate punishment for offenses the legislature intended to be punished as one, the court found that the second degree kidnapping and second degree assault convictions do not merge. This determination is based on the independent purposes and effects of the offenses, their placement in different chapters of the penal code, and the absence of legislative language indicating an intention to merge them. The second degree assault statute focuses on inflicting or threatening physical harm, while the kidnapping statute addresses abduction through deadly force. The trial court appropriately declined to merge these convictions.
In terms of sentencing, the defendant argues that the trial court should have considered the assault and kidnapping convictions as the same criminal conduct for sentencing purposes, which has some merit. Typically, sentencing involves calculating a range based on an offender's score from all current offenses and prior convictions.
In State v. Vike, the court addressed whether multiple offenses constitute "the same criminal conduct," as defined by RCW 9.94A.400(1)(a), which requires that the crimes share the same intent, occur simultaneously, and involve the same victim. The trial court determined that the assault and kidnapping committed by Taylor occurred at the same time and involved the same victim, leading to the inquiry of shared intent. The court concluded that Taylor's objective intent for both offenses was aligned; the kidnapping was aimed at abducting the victim using a firearm, while the assault served to intimidate the victim into compliance. Since both crimes occurred concurrently and the evidence did not support a change in intent between the offenses, the court found that they constituted the same criminal conduct, allowing them to be counted as one crime.
Regarding the weapon enhancement for second-degree kidnapping, Taylor contended that the State failed to notify him of the enhancement and that the jury instructions and verdict forms were inconsistent. The court clarified that while the State must notify the defendant of the charges, a jury can find a defendant guilty of a lesser-included offense without specific notice if the higher degree charge is presented. The jury was presented with verdict forms for both first and second-degree kidnapping, ultimately convicting Taylor of second-degree kidnapping and confirming the use of a deadly weapon via a special verdict. The court saw no inconsistency in the verdict forms and found sufficient evidence of Taylor's accomplicity in the use of a firearm during the kidnapping. Consequently, the trial court's imposition of the weapon enhancement was upheld, but the court affirmed the convictions while reversing the sentence and remanding for resentencing.
