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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 68679-8-1 Respondent, DIVISION ONE v.
ROBIN LEE DAVIS, PUBLISHED IN PART
Appellant. FILED: November 4, 2013
Spearman, A.C.J. — 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. No. 68679-8-1/2
FACTS
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 (Chet)1, were Davis's passengers. The client was monitoring the location of Rachel Valdez's cars by GPS and informing Saunders of their location.
Saunders directed Davis to a KFC restaurant in Mount Vernon, where they
spotted the Explorer in the 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
Explorer, jumped the curb, and drove away, almost striking Saunders. Valdez
dropped off his sister and niece at their home.
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 itwas the same one from KFC. In the
parking lot, Saunders, Davis, and Chet got out of the truck and went to the
1 For ease of reference, Chet Davis will be referred to by his first name.
2 No. 68679-8-1/3
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 out of the
Explorer. Saunders patted down Valdez, pulled his wallet out of his pocket, and
gave the wallet to Davis, saying, "Hold this in case he runs." Verbatim Report of
Proceedings (VRP) at 99-100, 157. J.V. testified that a pistol was pointed at him
and that he felt a gun at his back. Saunders told Valdez he was going to jail for
trying to run him over and that they were going to repossess the Explorer.
Saunders ordered Valdez to take them to the second car. He made J.V. get into
the truck with Davis and Chet and made Valdez get into the Explorer, with
Saunders driving. Two witnesses observed the incident at Burger King and called
911.
After Saunders began driving to the location of the second car, with Davis's
truck following, Valdez told Saunders he was diabetic and needed sugar. Both cars
stopped at a convenience store and Valdez went inside. By the time he exited, the
police had located the party at the convenience store. The police ordered everyone
out of the vehicles and arrested Davis, Saunders, and Chet. A search of Davis
revealed three rounds of ammunition. A pistol and a shotgun was found on the
back seat of the truck.2
The State charged Davis with one count of kidnapping in the first degree,
one count of kidnapping in the second degree, and two counts of assault in the
second degree. The State alleged that he was armed with a firearm for each count. Saunders was charged with the same four counts, also with firearm
2 Both firearms were tested and determined to be operable. 3 No. 68679-8-1/4
enhancements, plus one count of unlawful possession of a firearm by a convicted
felon. Chet pleaded guilty to unlawful imprisonment.
Davis and Saunders were tried together. Saunders testified that he had
been in the vehicle repossession business since 1997 and had learned how to
conduct repossessions on the job. He testified that there were no laws specifically
governing repossessions in Washington. Several times during his testimony, he
referenced repossession industry standards. At the conclusion of the defense's
case, the State sought to introduce testimony from Harlow Cody, an experienced
repossession agent. Davis objected, arguing it was not relevant to the defense's
case and related to collateral matters. The court permitted Cody to testify that there
were laws governing vehicle repossessions in Washington and to testify in
response to Saunders' testimony about industry standards.
At the conclusion of the State's case, the trial court granted the defense's
motion to dismiss the charge of kidnapping in the first degree based on insufficient
evidence. The court allowed the State to amend that charge to kidnapping in the
second degree.
The trial court gave the jurythe defense's requested lawful use of force
instruction, including a self-defense instruction. The self-defense instruction was
based on Saunders' testimony that Valdez drove the Explorer toward Chet in the
Burger King parking lot and that Saunders aimed the shotgun at the Explorer to
make Valdez stop. Over the defense's objection, the trial court also gave the
State's requested initial aggressor instruction. No. 68679-8-1/5
The jury found Davis guilty of two counts of kidnapping in the second
degree and two counts of assault in the second degree and also found he had
been armed with a firearm for each count.3 At sentencing, the court determined that the assault and kidnapping convictions for each victim were the same criminal
conduct and adjusted Davis's offender score to a "2."4 Clerk's Papers at 22; 68; 111. The sentencing range for each count was 13 to 17 months. Davis argued for
an exceptional sentence of no time on the standard range sentence due to the
mandatory time for the firearm enhancements. The court found two mitigating
factors justified an exceptional sentence and imposed no time on the charges,
followed by four consecutive 36-month sentences for the firearm enhancements.
Davis appeals.
DISCUSSION
Davis claims that (1) the kidnapping and assault of each victim merged; (2)
the trial court erred in giving the initial aggressor instruction; (3) the court erred in
permitting rebuttal testimony about repossession industry standards; and (4) the to- convict instruction for kidnapping omitted an essential element of the crime.
Merger
Merger issues involve questions of law reviewed de novo.5 State v. Freeman. 153 Wn.2d 765, 770, ma P 3d 753 (2005^ (citing State v. Johnston. 100
3Thejury found Saundersguilty oftwo counts of kidnapping in the second degree while armed with a firearm and acquitted him of two counts of assault in the second degree and unlawful possession ofa firearm. Saunders appealed separately. See State v. Saunders. 2013 WL 5729805, at *2-7 (Oct. 21, 2013).
4 Because each crime was violent, it counted as "2" in computing the offender score.
5Adouble jeopardy challenge is a constitutional claim that may be raised for the first time on appeal Freeman. 153 Wn.2d at 770. Davis did not waive this claim by failing to raise it below. 5 No. 68679-8-1/6
Wn. App. 126, 137, 996 P.2d 629 (2000)). The State may bring multiple charges
arising from the same criminal conduct in a single proceeding. State v. Kier, 164
Wn.2d 798, 803, 194 P.3d 212 (2008) (citing State v. Michielli. 132 Wn.2d 229,
238-39, 937 P.2d 581 (1997)). However, state and federal constitutional
protections against double jeopardy prohibit multiple punishments for the same
offense. "Where a defendant's act supports charges under two criminal statutes, a
court weighing a double jeopardy challenge must determine whether, in light of
legislative intent, the charged crimes constitute the same offense." Freeman, 153
Wn.2d at 771 (internal quotation marks and citation omitted). Because the
legislature has the power to define offenses and set punishments, the
determination of a double jeopardy violation turns on legislative intent. Id. at 771-
72.
Merger is a doctrine of statutory interpretation used to determine whether
the legislature intended to impose multiple punishments for a single act that
violates several statutory provisions.6 In re Pers. Restraint of Fletcher, 113 Wn.2d 42, 50-51, 776 P.2d 114 (1989). The doctrine applies
where the Legislature has clearly indicated that in order to prove a particular degree of crime (e.g., first degree rape) the State must prove not only that a defendant committed that crime (e.g., rape) but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes (e.g., assault or kidnapping).
id, at 51 (quoting State v. Vladovic. 99 Wn.2d 413, 421, 662 P.2d 853 (1983)).
If the doctrine applies, we presume the legislature intended to punish both offenses through a greater sentence for the greater offense. Freeman, 153Wn.2d at 772-
6Although there are several steps to determine the existence of a doublejeopardy violation, Davis only argues that merger applies. Therefore, we will focus on the merger doctrine. No. 68679-8-1/7
73. Even if charges appear to merge, however, they may be punished separately if
there is an independent purpose or effect to each. \_± at 773.
Although unlawful imprisonment is not specifically designated by statute as
a lesser degree of kidnapping, for several reasons, we conclude that for purposes
ofthe merger analysis, it should be considered as such.7 The statutes defining kidnapping (RCW 9A.40.020 for kidnapping in the first degree, RCW 9A.40.030 for
kidnapping in the second degree) and unlawful imprisonment (RCW 9A.40.040)
are found consecutively in chapter 9A.40 RCW. Unlawful imprisonment is also a
lesser included offense of kidnapping. State v. Russell, 104 Wn. App. 422, 449
n.61, 16 P.3d 664 (2001) (citing State v. Hansen, 46 Wn. App. 292, 296, 730 P.2d
706 (1986)). Furthermore, the purpose of the merger doctrine is to determine
whether the legislature intended multiple punishments for a single act that violates
several statutory provisions. Fletcher, 113 Wn.2d at 50-51. Here, the lesser crime
of unlawful imprisonment can be raised to the greater crime of kidnapping in the
second degree by conduct criminalized separately under the second degree assault statute. A person commits unlawful imprisonment if the person knowingly
restrains another person. RCW 9A.40.040(1). A person commits second degree
kidnapping if the person intentionally abducts another person under circumstances
not amounting to first-degree kidnapping. RCW 9A.40.030(1). "'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). "Restrain" is defined, in relevant part, as,
7There is no lesser degree of kidnapping than kidnapping in the second degree. 7 No. 68679-8-1/8
to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with his or her liberty.
RCW9A.40.010(6). 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. We
conclude that the merger doctrine is not precluded here simply because unlawful
imprisonment is not a lesser degree of kidnapping in the second degree.
The State asserts the merger doctrine does not apply because, to prove
kidnapping in the second degree, it was not required to prove assault in the second
degree.8 We disagree. As charged and proved in this case, in the absence ofthe State proving that Davis committed the crime of second degree assault by means
of a deadly weapon, Davis could have been convicted only ofthe lesser crime of
unlawful imprisonment.
The State's reliance on State v. Tavlor, 90 Wn. App. 312, 950 P.2d 526
(1998), a case decided in Division II of our court, is misplaced. In Tavlor, the court
8The State also argues that the court need not employ the merger doctrine because the legislature indicated in RCW 9.94A.533 that it intended multiple punishments for each firearm enhancementfound by the jury. This argument presupposes that the assaults did not merge with the kidnappings. The State is correct to the extent that if the counts did not merge, the trial court properly imposed four consecutive terms for the firearm enhancements under RCW 9.94A.533. But this does not answer the question as to whether the assaults and kidnappings merged. 8 No. 68679-8-1/9
rejected the defendant's argument that his convictions for kidnapping in the second
degree and assault in the second degree merged. The court concluded that
because "the threat or use of deadly force is not synonymous with the commission
of second degree assault with a deadly weapon," the legislature did not clearly
intend one crime to be an element of the other. Tavlor. 90 Wn. App. at 320.
Furthermore, the court observed, second degree kidnapping and second degree
assault arose in different chapters of the penal code, and the statutes criminalizing
the offenses had different purposes. ]d. Thus, the court held, the crimes did not
merge.
Tavlor is inapposite for two reasons. First, the court did not address the
issue presented here, 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.
Thus, in determining legislative intent, the court did not consider whether the
presumption that the legislature intended to punish both offenses through a greater
sentence for the greater offense applied. See Freeman, 153 Wn.2d at 772-73.
Second, in cases after Tavlor, 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.
In Freeman, the Washington Supreme Court considered whether, in the
consolidated case of State v. Zumwalt, convictions for robbery in the first degree
and assault in the second degree merged. Freeman, 153 Wn.2d at 770. Zumwalt No. 68679-8-1/10
had punched the victim in the face and robbed her. ]o\ The robbery was based on
the infliction of bodily injury alternative means, and the assault was based on the
reckless infliction of bodily harm alternative means. State v. Zumwalt, 119 Wn.
App. 126, 129-32, 82 P.3d 672 (2003). The Court stated that, to prove robbery in
the first degree as charged and proved, the State had to prove Zumwalt committed
an assault in furtherance of the robbery. Freeman, 153 Wn.2d at 778. The
convictions merged for double jeopardy purposes because "[a]s charged and
proved, without the conduct amounting to assault," Zumwalt "would be guilty of
only second degree robbery." Jd at 778.
Similarly, in State v. Esparza. 135 Wn. App. 54, 143 P.3d 612 (2006), this
court looked at how the offenses at issue-assault in the second degree and
attempted robbery in the first degree-were charged and proved. We noted that the
State had to prove only that the defendant was armed with a deadly weapon to
elevate attempted robbery to attempted robbery in the first degree, and that it was
charged and proved that the defendant was so armed, id. at 66. We explained,
"Since it was unnecessary under the facts of this case for the State to prove that
Beaver engaged in conduct amounting to second degree assault in order to
elevate his robbery conviction, and because the State did prove conduct not
amounting to second degree assault that elevated Beaver's attempted robbery
conviction, the merger doctrine does not prohibit Beaver's conviction for both
attempted first degree robbery and second degree assault." ]g\
In light of these cases, to the extent Tavlor can be read for the holding that
kidnapping in the second degree and assault in the second degree may never
10 No. 68679-8-1/11
merge, we disagree. As in Freeman, we will look at how the offenses here were
charged and proved. 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 Valdez and J.V. through the threatened use of
deadly force.9 Without the conduct amounting to assault in the second degree, Davis would have been guilty only of the lesser offense of unlawful imprisonment.
The State did not allege or prove a different act constituting the threatened use of
deadly force other than the pointing of the gun at the victims. 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.
Even if crimes would otherwise merge, they can be punished separately if
they had an independent purpose or effect. Freeman, 153 Wn.2d at 773. Davis
argues that the firearms were used to stop Valdez's car and effectuate the
kidnapping, thus there was no independent purpose or effect. The State does not
argue otherwise, and we agree with Davis. We hold the assault merged with the
9Thejury instructions included only the "using or threatening to use deadly force" alternative means of abducting, not the "secreting" alternative means.
11 No. 68679-8-1/12
kidnapping as to each victim and remand for (1) vacation of the assault
convictions10 and (2) resentencing.11 The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions.
Initial Aggressor Instruction
Whether sufficient evidence justified an initial aggressor instruction is a
question of law reviewed de novo. State v. Bea, 162 Wn. App. 570, 577, 254 P.3d
948, rev .denied, 173Wn.2d 1003(2011). In determining whether the evidence
was sufficient, we consider the evidence in the light most favorable to the party
who requested the instruction, jd (Citing State v. Fernandez-Medina, 141 Wn.2d
448, 455-56, 6 P.3d 1150 (2000). An initial aggressor instruction must be
supported by credible evidence that the defendant provoked the need to act in self-
defense. State v. Riley. 137 Wn.2d 904, 909-10, 976 P.2d 624 (1999). Such an
instruction is properly given when "(1) the jury can reasonably determine from the
evidence that the defendant provoked the fight; (2) the evidence conflicts as to
whether the defendant's conduct provoked the fight; or (3) the evidence shows that
the defendant made the first move by drawing a weapon." State v. Anderson, 144
10 The State concedes that if an offense is vacated, the associated firearms enhancement must be vacated. We accept the concession. When a court finds convictionsfor two offenses violate the double jeopardy proscription against multiple punishments it mustvacate one of the convictions. State v. Turner, 169 Wn.2d 448, 468-69, 238 P.3d 461 (2010). Ifan offense is vacated and the defendant is not sentenced for it, RCW 9.94A.533 does not provide a basis for imposing a term for the corresponding firearm enhancement. See RCW 9.94A.533(e) (making firearm enhancements mandatory "forall offenses sentenced under this chapter"). 11 Davis suggests that prevailing on his merger claim (i.e., having two ofthe four firearm enhancements vacated) requires his sentence to be reduced to six years from twelve. We disagree and remand for resentencing. The trial court imposed no time for the substantive offenses, and it is unclear how it would have sentenced Davis had it found merger. 12 No. 68679-8-1/13
Wn. App. 85, 89, 180 P.3d 885 (2008) (citing Riley. 137 Wn.2d at 909-10). Words
alone do not constitute sufficient provocation. Riley, 137 Wn.2d at 911.
Here, the trial court gave the jury the defense's requested lawful use of
force instruction, including a self-defense instruction and a citizen's arrest
instruction.12 Davis's self-defense claim was that he aimed the shotgun at the
Explorer to bluff Valdez into stopping because he believed the car was going to hit
Chet. The self-defense instruction was properly given because there was
testimony from the defense that Valdez tried to hit Chet.13 The court also gave the following initial aggressor instruction:
No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense or defense of another and thereupon use, offer, or attempt to use force upon or toward another person. Therefore, ifyou find beyond a reasonable doubt that the defendant was the aggressor, and that defendant's acts and conduct provoked or commenced the fight, then self-defense or defense of another is not available as a defense.
CP at 84.
An initial aggressor instruction was proper if there was sufficient evidence
that the defendants provoked Valdez into trying to hit Chet, thus prompting Davis's
12 The self-defense instruction stated that "[t]he use of force upon or toward the person of another is lawful whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing orattempting to prevent an offense against his orher person, in case the force is not more than is necessary." CP at 82.
13 Both the self-defense claim and the initial aggressor instruction were relevant only ifthe jury first believed the defense's evidence thatValdez tried to hit Chetwith the Explorer. Davis testified that when Saunders and Chet got out of the truck, Valdez accelerated toward Chet, at which point Davis pulled a shotgun out ofthe truck and pointed it at the Explorer. But Amber Spady, whowitnessed the incident at the Burger King, testified that the Explorer was in the parking lot first when the truck speeded toward it. She testified that the truck was driving more quickly than the Explorer and that when the two vehicles were close to each other the Explorer wasforced tostop. After the Explorer stopped, the driver ofthe truck got out ofthe truck with a gun and pointed it at the Explorer.. The other witness, Janessa Rhodes, testified that the two cars both drove quickly into the parking lot at the same time, with the truck following the Explorer. She testified that both cars drove around the parking lot, and the Explorer stopped first. The truck then stopped, and at that point two men got outofthe truck with guns and began yelling at the occupants ofthe Explorer. 13 No. 68679-8-1/14
use of force. The State argues the instruction was properly given because it was
based on conflicting evidence that the Davis party's actions at the KFC and in
following the Explorer into the Burger King parking lot provoked Valdez's alleged
aggression. We agree. Valdez testified that Saunders came up to the Explorer
from behind while it was in the drive-through lane at KFC, pressed on the car
window, yelled at him to move the car forward, and did not tell him the car was
being repossessed or show any repossession paperwork. He testified that Davis's
truck blocked the Explorer from passing and that its lights were shining on the
Explorer. The defendants demanded that the Explorer's occupants get out of the
car. Valdez was "very scared" and quickly drove off. RP 139. Later, Valdez and
J.V. noticed the same truck following them into the Burger King parking lot. Spady
and Rhodes saw the truck following the Explorer at high speeds into the parking
lot. Valdez testified that until he and J.V. were out of the Explorer and Saunders
demanded to know where the second car was, he thought he was the victim of a
carjacking. The evidence from the victims conflicts with Davis's contention that the defendants did nothing to provoke a belligerent response and was sufficient to
justify the initial aggressor instruction.
Rebuttal Evidence
A trial court's decision to permit rebuttal evidence is reviewed for manifest
abuse of discretion. State v. White, 74 Wn.2d 386, 395, 444 P.2d 661 (1968).
Rebuttal evidence is admitted to allow a plaintiff to answer new matters presented
by the defendant. lg\ at 394-95. Rebuttal evidence is not admissible where it is
14 No. 68679-8-1/15
unduly prejudicial or on collateral matters. State v. Fisher. 165 Wn.2d 727, 750,
202 P.3d 937 (2009) (internal citations omitted).
The trial court did not abuse its discretion in permitting Cody to testify.
Saunders' testimony bolstered the defense's claim that the repossession attempt
was conducted reasonably and in accordance with industry standards, and that it
was Valdez who acted inappropriately and provoked the need for self-defense.14 Even when Saunders clarified on cross-examination that he meant some of the
practices were standard for his company, his testimony did not fully retreat from his
prior testimony and still permitted the inference that his company's practices were
consistent with standard industry practice. Cody's testimony rebutted Saunders'
14 Saunders' testimony included the following references to repossession industry standards: (1) Saunders testified that itwas standard in the industry when repossessing more than one car from the same owner to first attempt to repossess the car that the owners were using the most or that was on the move. When asked about this statement during cross-examination, he testified, "Well, with our company, it is [standard], yes." VRP at 451-52. (2) Saunders testified that when they arrived at the KFC, Davis parked to the side of the drive-through and leftenough room for a car to drive by because "[i]n this industry, you know, you can't block people .. .." VRP at 398. On cross- examination he clarified that not blocking people was standard practice for his company because it did not want to be accused of false imprisonment. (3) Saunders testified that when they initially pulled into the Burger King parking lotto contact the Explorer itwas not his intentto arrest Valdez for attempting to run him down at the KFC. Asked why not, he replied, "It's just not standard in this industry, I guess." VRP at 407. (4) Saunders testified that after stopping the Explorer in the Burger King parking lot, he told J.V. he was going to ride with Davis while Saunders drove Valdez because "it's standard in the industry, whenever we repossess a vehicle, that - ifthere's more than two people and there's - You don't want somebody sitting behind you." VRP at 417-18. On cross-examination, when asked about this statement, he testified, "With our company, that's standard, yes." VRP at 452. (5) During cross-examination the prosecutor asked Saunders whether he was familiar with the term "breach of peace." Saunders testified, "To me it means that - In the industry anyways, it means that if there's a conflict, then the repossession stops." VRP at 448. (6) When asked on cross-examination whether it is standard in the industry for a repossession agent to back offwhen a person shows resistance, Saunders answered that it was, but only at that particular location. He testified he was not aware of anything prohibiting a repossession attempt later.
15 No. 68679-8-1/16
testimony that certain practices were standard in the industry.15 The defense introduced evidence that made the rebuttal evidence relevant to the issues, and
the trial court limited rebuttal to matters raised in the defense case.
Davis claims the evidence prejudiced him because it allowed the jury to find
that, by not following repossession protocol, the defendants were the initial
aggressors. "Evidence is not excluded because it is 'prejudicial' but because it is
unfairly prejudicial." State v. Gentry, 125 Wn.2d 570, 637, 888 P.2d 1105, cert,
denied, 516 U.S. 843 (1995) (citing State v. Lord. 117 Wn.2d 829, 891, 822 P.2d
177 (1991)). Here, though the evidence rebutted Saunders' testimony, we do not
agree it was unfairly prejudicial.
Kidnapping To-Convict Instruction
Davis claims the to-convict instruction for the kidnapping counts omitted an
essential element of the crime. In his opening brief, Davis assigns error to the jury
instruction but does not provide argument in support, stating he is joining in his co-
defendant Saunders' appellate brief.16 But in our recent decision in Saunders' appeal, we rejected the argument that the to-convict instruction relieved the State
of its burden of proving all of the elements of kidnapping in the second degree
because it did not state that the State had to prove that Saunders knew he did not
15 Cody testified thatthere were state and federal laws regulating repossession in Washington. He testified itwas not industry standard practice to (1) have someone whose car was being repossessed get in the car with the agent; (2) attempt to repossess a car with people in it; (3) use a weapon, abusive language, intimidation, or coercive tactics; or (4) order someone out of a car. He testified that when a first repossession attempt failed, the industry standard was to not make a second attempt within twenty-four hours.
16 The only briefing Davis provides on this issue appears in his reply brief and pertains to why the jury instruction prejudiced him. We point out that we do not permit litigants to use incorporation by reference as a means to argue on appeal or to escape the page limits for briefs set forth in RAP 10.4(b). Kaplan v. Nw. Mut. Life Ins. Co.. 115 Wn. App. 791, 801 n. 5, 65 P.3d 16 (2003). 16 No. 68679-8-1/17
have legal authority to restrict the victims' movements. Saunders. 2013 WL
5729805, at *2-7 (Oct. 21, 2013). Under Saunders, we reject Davis's claim.
Remanded with instructions to vacate assault counts and for resentencing.
WE CONCUR: ^^/a ,. ,flrft
6m,-J.