Filed Washington State Court of Appeals Division Two
February 22, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 56435-1-II
Respondent,
v. UNPUBLISHED OPINION
JEFFERY ALAN ROBERTS,
Appellant.
MAXA, P.J. – Jeffery Roberts was convicted of multiple offenses. On appeal, he claims
that his convictions of second degree assault, first degree kidnapping, and attempted first degree
rape violate double jeopardy. Roberts also challenges all his convictions in a statement of
additional grounds (SAG). The State cross-appeals the trial court’s dismissal of Roberts’s
unlawful imprisonment conviction.
Roberts and AB were in an intimate relationship. Roberts was very controlling, and over
several months he stalked, harassed, and threatened AB. The assault, kidnaping, and attempted
rape convictions arose from an incident that started when AB returned home late at night and
found Roberts parked in her driveway. Roberts demanded that she come with him to his house
and stated that he was not leaving until she did. He said that he was going to ram AB’s car and
lurched his truck at AB as if he were going to ram her. AB was afraid of what he might do, so
she drove to Roberts’s house while he drove inches behind her. Once they arrived at Roberts’s No. 56435-1-II
house and went into his room, Roberts calmed down and attempted to calm down AB. Roberts
then began to pull down AB’s pants, but the police arrived and arrested him.
The unlawful imprisonment conviction arose out of an incident the previous day, when
AB noticed Roberts’s truck in her rearview mirror chasing her as she was driving home. AB
parked in her driveway, and Roberts jumped out of his truck and opened AB’s car door. He
blocked AB from exiting the car for several minutes while he yelled at her. AB did not feel like
she could get away.
At the sentencing hearing, the trial court concluded that the second degree assault, first
degree kidnapping, and attempted first degree rape convictions constituted the same criminal
conduct for sentencing purposes but did not violate double jeopardy. The court also, without a
motion from Roberts, dismissed the unlawful imprisonment conviction because of insufficient
evidence.
Regarding Roberts’s appeal, we hold that (1) Roberts’s first degree kidnapping and
attempted first degree rape convictions do not violate double jeopardy, (2) Roberts’s second
degree assault and first degree kidnapping convictions violate double jeopardy and therefore the
second degree assault conviction must be dismissed, and (3) we decline to consider Roberts’s
SAG assertions. Regarding the State’s cross-appeal, we hold that the trial court erred in
dismissing Roberts’s unlawful imprisonment conviction because substantial evidence supported
that conviction.
Accordingly, we affirm all of Roberts’s convictions except for the second degree assault
conviction. We remand for the trial court to dismiss Roberts’s second degree assault conviction,
to reinstate Roberts’s unlawful imprisonment conviction, and for resentencing.
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FACTS
Background
AB and Roberts met approximately nine years before trial when AB was 19 years old and
Roberts was 38 or 39. They were friends for six or seven years before the relationship became
intimate. At that point, Roberts became very controlling. Throughout 2020, Roberts would call
AB 25 to 50 times per day, often leaving voicemails threatening to hurt her or damage her
property. He also would follow her and appear uninvited at the house where she lived with her
father, sometimes in the middle of the night. AB called 911 three times regarding Roberts’s
conduct.
In June 2020, Roberts showed up at AB’s house at 7:00 AM and banged on the outside
wall near AB’s bedroom. AB’s father went outside to talk with him, and Roberts was angry,
yelling, threatening, and demanding to see AB. Roberts shoved AB’s father multiple times back
into the house and burst into AB’s bedroom. Roberts slammed the door and would not let AB’s
father in as AB screamed for her father to call the police. AB’s father called the police, but
Roberts left before they arrived.
On August 6, AB was out when she received several calls from Roberts, which she
ignored. As she pulled into her housing development in Graham, she passed Roberts’s truck
coming in the opposite direction. All of a sudden she saw Roberts in her rearview mirror, and he
was chasing her. AB drove to her house, parked her car in the driveway, and yelled for her
father. Roberts pulled up behind her. Roberts jumped out of his truck and yanked AB’s car door
open. He blocked AB so she could not get out of the car and screamed at her. AB finally told
Roberts that she would speak to him if he stopped yelling. Roberts then let her out of the car and
left AB’s house after they talked.
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The next day, AB was out with a friend when she received threatening calls and texts
from Roberts asking where she was. When AB got home at approximately 1:00 AM on August 8,
she saw headlights from a vehicle blocking her driveway and assumed it was Roberts. AB called
Roberts and told him to get away from her driveway and to leave, but Roberts said that he was
not leaving until she came with him.
Roberts got out of his truck and started shouting at AB, saying that he was not going to
let her through and demanding that she go to his house. He also stated that he was going to ram
her car. Roberts got back in his truck, revved the engine and began lurching his truck toward
AB’s car, acting like he was going to ram her. Roberts was driving a big, lifted truck. When he
lurched the truck forward, AB was afraid that he was going to ram her car.
AB felt like she was forced to go to Roberts’s house, and so she started driving there.
Roberts drove inches behind AB on the way to his house. AB called her father on the drive there
and asked him to call the police because he knew Roberts’s address and could give it to them.
AB also called 911 and said that she was being forced to go somewhere that she did not want to
go. At that point, she was fearful for her life. AB hung up the phone as she pulled into Roberts’s
driveway.
Roberts’s house was isolated from the road by trees and was not well lit. Roberts parked
directly behind and within an inch of AB’s car, which prevented AB from backing up and
leaving. She could not get out and run because there were few houses around. And it was 1:30
AM and was very dark. Roberts opened the door to AB’s car and told her to get in his house.
She said she did not want to go, but Roberts said that he did not care and told her to get in the
house.
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AB went inside. Roberts’s mother lived in the house, and a young boy also was there.
AB went to Roberts’s room, where he closed the door and stood blocking the door. Roberts then
became very calm, and he tried to calm down AB and tried to explain to AB that the situation
was okay. AB stated that she wanted to leave, but Roberts refused. Roberts asked for one more
time, which AB interpreted as a request for sex. Roberts began to pull AB’s pants down and got
them halfway down when the police showed up and arrested him.
Roberts was charged with nine offenses, including unlawful imprisonment relating to the
August 6 incident, and second degree assault, first degree kidnapping, and attempted first degree
rape relating to the August 8 incident. He also was charged with first degree burglary and fourth
degree assault regarding the June 2020 incident, felony harassment between July 25 and August
8, 2020, stalking from January through December 2020, and violation of a no contact order in
December 2020.
Trial
At trial, AB testified regarding the facts recited above, and her father also testified
regarding the incidents in which he was present.
Regarding the August 6 incident, AB testified that Roberts blocked her so she could not
get out of her car. He was much bigger than her and she could not get past him to get out of her
car. AB did not feel like she could try to get away. AB stated that in the past she had tried to get
away from Roberts more than once, but he had thrown her down and injured her and she had
never been successful in escaping. AB’s father also testified that AB would not have been able
to get past Roberts.
In addition, a video of the August 6 incident was captured on the house’s surveillance
system, which was admitted into evidence and played for the jury. The video (which had no
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sound) showed that Roberts stood next to AB’s open car door for approximately seven minutes
in a manner that prevented her from exiting through that door. At times he leaned completely
into the car, pushing his face into AB’s face as she moved away from him.
The State also played several recorded voicemail messages that Roberts left on AB’s
phone. The messages contained several threats, including: “I’m gonna f***ing hurt you so
f***ing bad”; “I’m gonna break your f***in’ neck”; “I’ll f*** you up”; “I’m gonna beat your
mother f***in’ head in”; “[y]ou’re a dead ass”; and “[y]ou’re dead.” Ex. at 13.
The jury convicted Roberts of all nine charged offenses, including unlawful
imprisonment, second degree assault, first degree kidnapping, and attempted first degree rape.
Sentencing
At the sentencing hearing, the trial court asked whether there was enough evidence to
support the unlawful imprisonment conviction even though Roberts had not filed a motion to
dismiss that conviction. The parties discussed the circumstances regarding the incident on
August 6, 2020 and the video. Ultimately, the court ruled that there was insufficient evidence of
unlawful imprisonment to convict as a matter of law and stated that the conviction would be
dismissed. The State objected to the dismissal. The court entered an order dismissing the
The trial court concluded that the second degree assault, first degree kidnapping, and
attempted first degree rape constituted the same criminal conduct for purposes of Roberts’s
offender score. However, the court ruled that the three offenses did not violate double jeopardy.
The court sentenced Roberts to 130 months for first degree kidnapping, 140 months to life for
attempted first degree rape, and 43 months for second degree assault. All the sentences were
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concurrent because first degree kidnapping and attempted first degree rape constituted the same
criminal conduct.
Roberts appeals on double jeopardy grounds. The State cross appeals the trial court’s
dismissal of the unlawful imprisonment conviction.
ANALYSIS
A. DOUBLE JEOPARDY
Roberts argues that the second degree assault, first degree kidnapping, attempted first
degree rape convictions violate double jeopardy. We hold that the first degree kidnapping and
the attempted first degree rape convictions do not violate double jeopardy, but the second degree
assault and first degree kidnapping convictions do violate double jeopardy.
1. Legal Principles
The Fifth Amendment to the United States Constitution and article I, section 9 of the
Washington Constitution state that no person shall be put in jeopardy twice for the same offense.
The double jeopardy clauses also protect defendants from being punished more than once for the
same offense. In re Pers. Restraint of Knight, 196 Wn.2d 330, 336, 473 P.3d 663 (2020). And
multiple convictions may implicate double jeopardy even if the corresponding sentences are
served concurrently. State v. Arndt, 194 Wn.2d 784, 815, 453 P.3d 696 (2019). We review de
novo whether separate convictions violate double jeopardy. Knight, 196 Wn.2d at 336.
We analyze double jeopardy claims using a four-part analysis. Arndt, 194 Wn.2d at 816.
First, we consider whether “ ‘there is clear legislative intent to impose multiple punishments for
the same act or conduct.’ ” Id. (quoting State v. Kelley, 168 Wn.2d 72, 77, 226 P.3d 773 (2010)).
If so, then the inquiry stops and there is no double jeopardy violation. Arndt, 194 Wn.2d at 816.
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If no clear legislative intent exists, the second step in the analysis is to apply the
Blockburger1 “same evidence” test. Id. at 818. “ ‘[W]here the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision requires proof of a fact
which the other does not.’ ” Id. (quoting In re Pers. Restraint of Orange, 152 Wn.2d 795, 817,
100 P.3d 291 (2004)). “We consider the elements of the crimes as charged and proved, not
merely as the level of an abstract articulation of the elements.” State v. Freeman, 153 Wn.2d
765, 777, 108 P.3d 753 (2005). The question is whether proof of one offense as charged requires
proof of every element of the other offense. Arndt, 194 Wn.2d at 818. “[I]f each offense, as
charged, includes elements not included in the other, the offenses are different and multiple
convictions can stand.” State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995).
The third step in the analysis involves application of the merger doctrine. Arndt, 194
Wn.2d at 819. The merger doctrine
applies where the Legislature has clearly indicated that in order to prove a particular degree of crime . . . the State must prove not only that a defendant committed that crime . . . but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes.
State v. Berg, 181 Wn.2d 857, 865, 337 P.3d 310 (2014) (quoting State v. Vladovic, 99 Wn.2d
413, 420-21, 662 P.2d 853 (1983)). “ ‘Under the merger doctrine, when the degree of one
offense is raised by conduct separately criminalized by the legislature, we presume the
legislature intended to punish both offenses through a greater sentence for the greater crime.’ ”
Arndt, 194 Wn.2d at 818 (quoting Freeman, 153 Wn.2d at 772-73). Again, we must consider the
offenses as charged and proved. See Freeman, 153 Wn.2d at 778.
1 Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
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The fourth step involves an exception to the merger doctrine. Arndt, 194 Wn.2d at 819.
Separate punishments are allowed “when overlapping offenses have independent purposes or
effects.” Id. “ ‘To establish an independent purpose or effect of a particular crime, that crime
must injure the person or property of the victim or others in a separate and distinct manner from
the crime for which it also serves as an element.’ ” Id. (quoting State v. Harris, 167 Wn. App.
340, 355, 272 P.3d 299 (2012)). The separate injury must be more than merely incidental to the
crime of which it forms an element. Berg, 181 Wn.2d at 866. This exception can apply even if
two convictions appear to be the same offense or appear to merge. Knight, 196 Wn.2d at 337.
The focus is on the specific facts of each case. Id. at 338.
The remedy for double jeopardy violations is to vacate the lesser offense or the charge
that carries a lesser sentence. State v. Albarran, 187 Wn.2d 15, 21-22, 383 P.3d 1037 (2016).
2. Applicable Statutory Provisions
Under RCW 9A.36.021(1)(c), a person is guilty of second degree assault if the person
“[a]ssaults another with a deadly weapon” under circumstances not amounting to first degree
assault. A deadly weapon means any weapon, including a vehicle, that “under the circumstances
in which it is used, attempted to be used, or threatened to be used, is readily capable of causing
death or substantial bodily harm.” RCW 9A.04.110(6).
Under RCW 9A.40.020(1), a person if guilty of first degree kidnapping if the person
“intentionally abducts another person with intent . . . (b) To facilitate commission of any felony.”
The term “abduct” means “to restrain a person by either (a) secreting or holding him or her in a
place where he or she is not likely to be found, or (b) using or threatening to use deadly force.”
RCW 9A.40.010(1).
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Under RCW 9A.44.040(1), a person is guilty of first degree rape “when such person
engages in sexual intercourse with another person by forcible compulsion where the
perpetrator . . . (b) Kidnaps the victim.” A person is guilty of an attempt to commit a crime if,
with the “intent to commit a specific crime, he or she does any act which is a substantial step
toward the commission of that crime.” RCW 9A.28.020(1).
The trial court properly instructed the jury with regard to the statutory requirements of
these offenses.
3. Analysis – First Degree Kidnapping and Attempted First Degree Rape
Roberts argues that his convictions of first degree kidnapping and attempted first degree
rape violate double jeopardy. We disagree.
Roberts argues, and the State concedes, that we must presume under the merger doctrine
that the legislature intended to punish first degree kidnapping and attempted first degree rape
only once because kidnapping is the predicate for first degree attempted rape as charged and
proved in this case. The dispositive question here involves step four of the double jeopardy
analysis – whether the independent purpose or effects exception to the merger doctrine applies.
See Arndt, 194 Wn.2d at 819. As noted above, this exception applies if the kidnapping injured
AB in a separate and distinct manner from the attempted rape. See id.
We conclude that the kidnapping had an independent purpose and caused a separate
injury than the attempted rape. Viewing the evidence as a whole, the kidnapping was a
continuation of Roberts’s previous attempts to control, dominate, intimidate, and harass AB. He
sought to impose his will and force AB to go somewhere she did not want to go to demonstrate
to AB that he could control her. As a result, the evidence shows that Roberts did not kidnap AB
solely to attempt to rape her. His goal was to force her to come to his house because that is what
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he wanted and to show that he could control AB. Once AB was there, he calmed down. The
attempted rape seemed almost like an afterthought.
In addition, the two crimes caused separate injuries. The injury from the kidnapping was
the fear and emotional distress that was a continuation of Roberts’s previous harassing and
threatening behavior. That injury was complete once Roberts got AB in his house and calmed
down. And that injury was completely different that the injury caused by the attempted rape –
AB’s fear that she would be sexually assaulted.
We hold that Roberts’s first degree kidnapping and attempted first degree rape
convictions do not violate double jeopardy.
4. Analysis – Second Degree Assault and First Degree Kidnapping
Roberts argues that his second degree assault and first degree kidnapping convictions
violate double jeopardy. We agree.
a. Offenses as Charged and Proved
The trial court instructed the jury that a person commits second degree assault if the
person assaults another with a deadly weapon. See RCW 9A.36.021(1)(c). The trial court
instructed the jury that a person commits first degree kidnapping if the person abducts another
with the intent to facilitate the commission of attempted first degree rape, and defined “abduct”
as “either secreting or holding the person in a place where that person is not likely to be found or
using or threatening to use deadly force.” Clerk’s Papers at 125.
b. Applicable Cases
In State v. Taylor, the defendant challenged on double jeopardy grounds his convictions
of second degree assault and second degree kidnapping. 90 Wn. App. 312, 314-15, 950 P.2d 526
(1998). The convictions arose out of an incident in which the defendant and an accomplice
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jumped into a vehicle, put a gun to the driver’s head, and forced him to drive to a particular
location. Id. at 315. The second degree assault conviction was based on an assault with a deadly
weapon, and the second degree kidnapping was based on abduction by threatening to use deadly
force. Id. at 318.
This court held that the two convictions did not violate double jeopardy because the
“legal elements of these two crimes are not identical.” Id. at 319. The court stated:
Assault with a deadly weapon does not contain the same legal elements as kidnapping by the use or threatened use of deadly force. One can kidnap a victim using deadly force by directing the force against the victim’s guardian or caretaker. Thus, to commit second degree kidnapping, unlike second degree assault, it is not necessary to place the victim in fear or apprehension of harm. Conversely, one can commit an assault without abducting the victim.
Moreover, one can threaten or use deadly force during a kidnapping without using a deadly weapon.
Id. at 318-19. The court concluded that “the threat or use of deadly force is not synonymous
with the commission of second degree assault with a deadly weapon.” Id. at 319.
The court also determined that the legislature did not intend second degree assault to
merge with second degree kidnapping. Id. at 320. First, “[t]hese offenses arise in different
chapters of the penal code.” Id. Second, the purposes of the two offenses are not the same: “The
second degree assault with a firearm statute criminalizes conduct that inflicts or attempts to
inflict or places a person in fear of physical harm.” Id. “The second degree kidnapping statute,
on the other hand, criminalizes the abduction of victims against their will through the use of
deadly force.” Id. Third, the applicable statutes do not contain language indicating that the
legislature clearly intended one crime to be an element of the other. Id.
In State v. Davis, the defendant challenged on double jeopardy grounds his convictions of
two counts of second degree assault and two counts of second degree kidnapping. 177 Wn. App.
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454, 456, 311 P.3d 1278 (2013). The convictions arose out of an incident in which the defendant
and two codefendants, while acting as repossession agents, forced two people out of a car at
gunpoint and moved them to a second car. Id. at 456-57.
Division One of this court held that the second degree assault convictions merged into the
second degree kidnapping convictions. Id. at 465. The court first noted that depending on the
facts, conduct constituting second degree assault can elevate unlawful imprisonment to
kidnapping:
One means of abducting a person, i.e., committing the crime of second degree kidnapping, is to restrain the person by “using or threatening to use deadly force.” RCW 9A.40.010(1). But when the restraint is accomplished without the use of such force, the result is the lesser offense of unlawful imprisonment. Assault in the second degree is committed, among other ways, by assault with a deadly weapon. RCW 9A.36.021(1)(c). Thus, in certain cases an assault with a deadly weapon can constitute the use or threatened use of deadly force that raises unlawful imprisonment to kidnapping in the second degree.
Id. at 462.
The court stated that Taylor was “inapposite” for two reasons. Id. at 463. First, the court
in Taylor did not address “whether the State had to prove the act that constituted the assault in
order to elevate a lesser crime to kidnapping in the second degree.” Id. Second, the court noted
that unlike in Taylor,
courts discussing merger have focused on the manner in which the offenses were charged and proved in a particular case and asked whether the State was required to prove the act constituting the merging crime to elevate the other crime. That is, courts have not simply looked at the crimes in the abstract, as the court did in Taylor. Id.
The court discussed Freeman and two other cases, in which the courts focused on how
the offenses were charged and proved in determining whether the offenses merged. Id. at 463-
64. The court then stated, “In light of these cases, to the extent Taylor can be read for the
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holding that kidnapping in the second degree and assault in the second degree may never merge,
we disagree. As in Freeman, we will look at how the offenses here were charged and proved.”
Id. at 464.
Turning to the specific facts of the case, the court stated,
Here, the act constituting assault in the second degree (i.e., assault with a deadly weapon) was Davis’s act in pointing the gun at the victims. That same act constituted the threatened use of deadly force that was the means by which the State charged and proved that Davis committed kidnapping in the second degree: by restraining [the victims] through the threatened use of deadly force. Without the conduct amounting to assault in the second degree, Davis would have been guilty only of the lesser offense of unlawful imprisonment. . . . Stated differently, under these facts, the State was required to prove that Davis engaged in the conduct amounting to second degree assault to elevate unlawful imprisonment to second degree kidnapping. Thus the assault as to each victim merged with the kidnapping as to that victim.
Id. at 464-65 (emphasis added).
c. Same Evidence/Merger Analysis
The parties agree that the second degree assault and first degree kidnapping statutes do
not expressly authorize separate punishments for the same conduct. Therefore, we focus on the
second and third steps of the double jeopardy analysis. See Arndt, 194 Wn.2d at 818-19.
The assault with a deadly weapon as charged and proved here included Roberts
threatening to ram AB’s car with his truck. One of the ways to prove abduction – required to
establish kidnapping – is threatening to use deadly force. RCW 9A.40.010(1)(b). Roberts
threatened to use deadly force by threatening to ram AB’s car with his truck. Therefore, the
State necessarily proved second degree assault by proving first degree kidnapping by a threat to
use deadly force. Stated in terms of the same evidence test, the evidence that proved first degree
kidnapping by a threat to use deadly force was the same evidence that proved second degree
assault.
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In addition, the second degree assault and the first degree kidnapping convictions must
merge because the assault with a deadly weapon elevated the second offense from unlawful
imprisonment to kidnapping. As noted above, the State proved both second degree assault and
first degree kidnapping by showing that Roberts threatened to ram AB’s car with his truck.
Without the second degree assault, there arguably would have been no abduction as defined in
RCW 9A.40.010(1) and the State could have proved only unlawful imprisonment.
The facts here are virtually identical to the facts in Davis. As in Davis, the same act that
constituted second degree assault allowed the State to prove kidnapping rather than unlawful
imprisonment. The State urges us to follow Taylor and disregard Davis and hold that second
degree assault does not merge with first degree kidnapping here. But we agree with the court in
Davis and conclude that Davis directly controls here. We decline to follow Taylor to the extent
that it suggests that second degree assault can never merge with first degree kidnapping. Rather
than looking in the abstract at the elements that comprise the two offenses, we must look at how
the offenses were charged and proved in this case.
The State argues that the same evidence did not establish both second degree assault and
first degree kidnapping and proving second degree assault was not necessary to elevate the
offense from unlawful imprisonment to kidnapping here for two reasons. First, the State claims
that Roberts already had communicated threats of deadly force in his voicemail messages to AB
the previous week, and those threats were sufficient to prove abduction by the threat of deadly
force even without Roberts’s threat to ram AB’s car. But the evidence does not support this
argument. In order to abduct a person, the defendant must “restrain” that person by threatening
deadly force. There was no evidence that Roberts “restrained” AB by making voicemail threats
in prior days.
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Second, the State claims that Roberts also secreted AB in a place where it was unlikely
that she would be found by taking her to his secluded house, another way of proving abduction
besides threatening deadly force. The State argues that this conduct was sufficient to prove
abduction even without Roberts’s threat to ram AB’s car.
Again, the evidence does not support this argument. Even though Roberts’s house was in
a secluded area, the house had a known address and was occupied by his mother and a child.
AB’s father knew Roberts’s address and AB knew where to go although she did not have the
exact address. There was no evidence that AB was unlikely to be found in that house.
In addition, the jury verdict did not specify the acts on which the jury relied to convict
Roberts of first degree kidnapping. As the State argues, the jury could have relied on Roberts’s
voicemail threats to establish abduction by the threat of deadly force. But the jury also could
have relied on Roberts’s threat to ram AB’s car. Therefore, the verdict was ambiguous in this
respect. And as the State argues, the jury could have relied on Roberts taking AB to a place
where it was unlikely she would be found to establish abduction. But the jury also could have
relied on Roberts’s threat of deadly harm – ramming AB’s car. Therefore, the verdict was
ambiguous in this respect.
When the verdict is ambiguous, there is no way to determine whether the jury used the
same evidence to convict the defendant of two crimes or used one crime to elevate another lesser
crime to a greater crime and the rule of lenity must be applied to merge the two convictions.
State v. Kier, 164 Wn.2d 798, 812-13, 194 P.3d 212 (2008); State v. Whitaker, 192 Wn. App.
395, 411-17, 367 P.3d 1092 (2016); State v. DeRyke, 110 Wn. App. 815, 822-24, 41 P.3d 1225
(2002), aff’d on other grounds, 149 Wn.2d 906, 73 P.3d 1000 (2003). The court stated in
Whitaker,
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While it is true there were multiple violations of the court order protecting Spalding throughout the charging period, we cannot be certain which served as the basis for the jury to convict Whittaker of felony stalking. The possibility that the jury could have convicted Whittaker on a basis that does not offend the double jeopardy protections to which he is entitled is simply not enough to cure the problem. The verdict is ambiguous. The rule of lenity applies.
192 Wn. App. at 417 (emphasis added).2
We conclude that the same evidence and merger steps of the double jeopardy analysis
establish that Roberts’s second degree assault and first degree kidnapping convictions violate
double jeopardy.
d. Independent Purpose/Effects Exception
Even though application of the same evidence test and the merger doctrine suggests that
second degree assault and first degree kidnapping convictions violate double jeopardy, we again
must consider the exception to the merger doctrine: whether the second degree assault and first
degree kidnapping had independent purposes or effects, or caused separate and distinct injuries.
Arndt, 194 Wn.2d at 819.
The State argues that the exception applies because the second degree assault and the first
degree kidnapping produced separate injuries. The assault put AB in fear of physical harm,
while the kidnapping resulted in her involuntary movement. However, these harms were
intertwined, not independent. Roberts placed AB in fear of physical harm for the purpose of
forcing her to involuntarily go to his house. Therefore, we reject the State’s argument.
2 The State relies on In re Personal Restraint of Borrero, 161 Wn.2d 532, 167 P.3d 1106 (2007) and State v. Esparza, 135 Wn. App. 54, 143 P.3d 612 (2006) for the proposition that double jeopardy does not apply if the verdict is ambiguous and the jury could have relied on different evidence to convict of two crimes. However, Borrero and Esparza involved multiple acts that could be the substantial step for an attempted murder conviction, while Kier, Whitaker, and DeRyke involved evidence supporting completed crimes.
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e. Summary
The jury could have relied on the same evidence to convict Roberts of second degree
assault and to establish the abduction element of first degree kidnapping – Roberts’s threat to
ram AB’s car with his truck. The jury could have used AB’s threat to ram AB with his truck to
establish the abduction element and thereby elevate what would be unlawful imprisonment to
kidnapping. Therefore, the two convictions violate double jeopardy under both the same
evidence test and the merger doctrine.
We hold that Roberts’s second degree assault and first degree kidnapping convictions
violate double jeopardy, and therefore the second degree assault conviction must be dismissed.
B. SUFFICIENCY OF EVIDENCE – UNLAWFUL IMPRISONMENT
The State argues that the trial court erred in dismissing Roberts’s unlawful imprisonment
conviction based on insufficient evidence. We agree.3
The test for determining sufficiency of evidence is whether any rational trier of fact could
find all the elements of the charged crime beyond a reasonable doubt after viewing the evidence
in a light most favorable to the State. State v. Bergstrom, 199 Wn.2d 23, 40-41, 502 P.3d 83
(2022). In a sufficiency of the evidence claim, the defendant admits the truth of the State’s
evidence and all reasonable inferences drawn from that evidence. Id. at 41. Circumstantial and
direct evidence are equally reliable. State v. Cardenas-Flores, 189 Wn.2d 243, 266, 401 P.3d 19
(2017). We defer to the trier of fact regarding evaluation of the evidence and credibility
determinations. Bergstrom, 199 Wn.2d at 41.
3 Initially, the State argues that the trial court did not have the authority to sua sponte dismiss one of Roberts’s convictions. But regardless of the trial court’s authority, we will address whether sufficient evidence supports the unlawful imprisonment conviction.
18 No. 56435-1-II
“A person is guilty of unlawful imprisonment if he or she knowingly restrains another
person.” RCW 9A.40.040(1). Restrain means to “restrict a person’s movement without consent
and without legal authority in a manner which interferes substantially with his or her liberty.”
RCW 9A.40.010(6). “Interferes substantially” means an interference that is more than “ ‘a petty
annoyance, a slight inconvenience, or an imaginary conflict.’ ” State v. Dillon, 12 Wn. App. 2d
133, 144, 456 P.3d 1199 (2020) (quoting State v. Washington, 135 Wn. App. 42, 50, 143 P.3d
606 (2006)). The presence of a means of escape is a defense to unlawful imprisonment unless
‘the known means of escape . . . present[s] a danger or more than a mere inconvenience.’ ”
Dillon, 12 Wn. App. 2d at 144 (quoting State v. Kinchen, 92 Wn. App. 442, 452 n.16, 963 P.2d
928 (1998)).
Here, the testimony of AB, her father, and the video of the incident provided sufficient
evidence that Roberts substantially interfered with AB’s liberty on August 6, 2020. AB testified
that Roberts blocked her from leaving her car as he yelled at her. She said that he was much
bigger than her, so she could not get past him. AB’s father testified that AB would not have
been able to get past Roberts. And the video shows that Roberts stood next to AB’s car door for
approximately seven minutes while AB remained in the car. This conduct involved more than a
slight inconvenience.
Roberts argues that AB did not testify that she was unable to exit the car through the
passenger door, which he was not blocking. However, AB testified that Roberts had physically
hurt her when she had tried to escape from him in the past. The jury could infer from this
testimony that her means of escape presented a danger.
We conclude that viewing the evidence in a light most favorable to the State, there was
sufficient evidence to support Roberts’s conviction for unlawful imprisonment.
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C. SAG CLAIMS
Roberts asserts several claims in his SAG. We decline to consider these claims.
1. Ineffective Assistance of Counsel
Roberts asserts that he never had a pretrial conference with his defense counsel, did not
see his discovery until trial, and informed his counsel to call all witnesses except his mother. He
also asserts that his counsel never entered evidence of phone records and text messages showing
that AB wanted to have sex with him as soon as he got out of jail. However, because these
claims rely on matters outside the record, we cannot consider them in this direct appeal. State v.
Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008). Instead, they must be raised in a personal
restraint petition. Id.
2. Missing Evidence
Roberts asserts that he had a lot more evidence that could have been used in his favor at
discovery and if he had a pretrial conference. However, although Roberts does not identify the
evidence that he claims should have been used, that evidence apparently is outside our record.
Therefore, we cannot consider this claim. Alvarado, 164 Wn.2d at 569.
3. Text Messages from AB
Roberts asserts that the record will show that he was being texted by AB while in court
on April 22, 2021. Because this claim relies on matters outside our record, we cannot consider
it. Alvarado, 164 Wn.2d at 569.
4. Edited Video and Hearsay Evidence
Roberts asserts that the video shown at trial was edited by AB’s father and that the
testimony was all hearsay. Because the editing claim relies on matters outside our record, we
cannot consider it. Alvarado, 164 Wn.2d at 569. And Roberts does not identify the evidence he
20 No. 56435-1-II
claims constituted hearsay or show that he objected to any testimony on that basis. Therefore,
we will not consider this claim. RAP 10.10(c).
CONCLUSION
We affirm all of Roberts’s convictions except for the second degree assault conviction.
We remand for the trial court to dismiss Roberts’s second degree assault conviction, to reinstate
Roberts’s unlawful imprisonment conviction, and for resentencing.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, P.J.
We concur:
VELJACIC, J.
PRICE, J.