### FILED NOV 10,2015 In the Office ofthe ClerkofCourt W A State CourtofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 32461-3-111 Respondent, ) ) v. ) ) FRANCISCO JAVIER SORIA-NANAMKIN, ) UNPUBLISHED OPINION ) Appellant. ) KORSMO,

### J.

- Francisco Soria-Nanamkin appeals his convictions for first degree burglary, unlawful imprisonment, theft ofa motorvehicle, and second degree assault on several grounds. We affirm. FACTS Mr. Soria-Nanamkin made several telephone calls in the early morning hours of September 6,2012 to his former girlfriend, TanyaAbrego, asking hertopickhimup. She initially declined, but agreed topickhimup when hethreatened to cometo herhouse while she and her sonweretrying to sleep. Hewas intoxicated when shepicked himup and drove himto a convenience store. Hebought a cigarette and left on foot in a state of anger. She drove home and returned to sleep. 

# INo. 32461-3-III State v. Soria-Nanamkin
Laterthat night Ms. Abrego was awakened by loudbanging on her door. Unbeknownst to her, Mr. Soria-Nanamkin had broken down the back door and entered the house. She ran into herhousemate's room and told him to phonethe police. Mr. Soria-Nanamkin came up behind her and struckher in the back ofthe head, knocking her to the floor. He continued to hit and kick her. The housemate witnessed the assault but did not get involved. Mr. Soria-Nanamkin then loaded hertelevision and video game system into her
car and ordered herto get in the car too. She obeyed out offear and they drove to his girlfriend's house wherehe ordered herto throwrocks at his girlfriend's caruntil the neighbors chased them off. They drove back to Ms. Abrego'shouse where Mr. SoriaNanamkin eventually drove offin Ms. Abrego's car, leaving her behind. Her car was laterrecovered by the police. The next day, Ms. Abrego's lips and nose were swollen and bruised. Her right eye
was swollen shut and bruised. She hadrug burns on her knees and right elbow, and bruising to herupper-left hand side ofherback, stomach, and left shoulder. While Ms. Abrego received treatment at Yakima Memorial Hospital, an officer from the Yakima Police Department came to interview her. During the interview, he dispatched officers to arrest Mr. Soria-Nanamkin. Mr. Soria-Nanamkin was broughttothe police station and gave a recorded interviewto Detective ChadJanis. In his statement, Mr. SoriaNanamkin admitted to being in the house, but he denied assaulting Ms. Abrego. 2No. 32461-3-III State v. Soria-Nanamkin
The prosecutor filed charges offirst degree burglary, second degree kidnapping, theft ofa motor vehicle, and second degree assault. Each charge also was alleged to have been committed against a family or household member. The court conducted a erR3.5 hearing and admitted the statement at trial. The State also sought to admit evidence of previous incidents ofviolence by Mr. Soria-Nanamkin against Ms. Abrego. Although the defense contended that the evidence was extremely prejudicial, the court found that its probative value outweighed its prejudicial impact. The defense obtained a limiting instruction for thejuryconcerningthe ER404(b) evidence. Mr. Soria-Nanamkin testified at trial in his own behalf. He denied unlawfully entering Ms. Abrego's house or forcing her to drive him to his girlfriend's house, but admitted assaulting her. Thejury found Mr. Soria-Nanamkin guilty ofthe burglary, theft, and assault counts. 

### It acquitted him ofthe kidnapping charge, but convicted him ofthe lesser included offense ofunlawful imprisonment. Thejury also did not find that any of the offenses were committed against a family or household member. The trial court imposed concurrent standard range sentences. The court also directed that Mr. Soria-Nanamkin undergo a domestic violence perpetrator evaluation and treatment priorto the end ofhis period ofcommunity supervision. He then timely appealed to this court.

3No. 32461-3-III State v. Soria-Nanamkin
ANALYSIS This appeal challenges the sufficiency ofthe evidence to support the unlawful imprisonment conviction, the decision to admit evidence pursuant to ER404(b), the effectiveness oftrial counsel's representation, and the imposition ofthe domestic violence perpetrator evaluation requirement. We address those challenges in the order stated. UnlawfulImprisonment Mr. Soria-Nanamkin argues first thatthe evidence did not establish the "restraint" element ofthe unlawful imprisonmentcharge. Properly viewed, the evidence did support the verdict. Very familiar standards govern this challenge. Evidence is sufficientto support a verdict in a criminal case if, viewing the evidence in a light most favorable to the prosecution, ajury could find each element ofthe crime was provedbeyond a reasonable doubt. State v. Green, 94 Wn.2d 216,221-222,616P.2d 628 (1980). The crime of unlawful imprisonment is committed when the defendant knowingly restrains another person. RCW 9A.40.040. "Restrain," in turn, includes restricting "aperson's movements without consent and without legal authority in a manner which interferes substantially with his or her liberty." RCW 9A.40.01O(6). A "restraint" is "without consent" when 

### itis accomplished by intimidation. 

### Id.

4No. 32461-3-II1 State v. Soria-Nanamkin
This court has described substantial interference as one that is '" real'" or '" material,'" and not "apetty annoyance, a slight inconvenience, or an imaginary conflict." State v. Robinson, 20 Wn. App. 882,884,582 P.2d 580 (1978), aff'd, 92 Wn.2d 357, 597 P.2d 892 (1979). InRobinson, the defendant grabbed a young girl by her arm and said "dowhat I say or else," and thenhe began dragging her to his car. This court concluded that was a substantial restraint. Id. at 883-885. Here, the record amply supports thejury'sverdict on the restraint element. There
was evidence that the defendant used force and intimidationto order the victim out ofher house and into her car. Moments before he ordered herto get in the car, he beat her to the floor and held her down. When he then wanted her to get in the car, she testified that she obeyed out offear. He drove to a location ofhis choosing, his girlfriend's house. He ordered Ms. Abrego to get out ofthe car and throw rocks at his girlfriend's car. He then ordered her to getback in the car and took her home, all the while subjecting her to reckless driving. Ms. Abrego's obedience was not a matter ofavoiding an annoyance or
an inconvenience. She had beenbeaten into submission and was fearful offurther violence. She was forced from her home into a car without means ofescape or control
over the destination. On these facts, thejury was within its authority to conclude that Mr. Soria-Nanamkin restrained Ms. Abrego through intimidation. The evidence was sufficient to supportthejury'sverdict.



### 5No. 32461-3-111 State v. Soria-Nanamkin
ER 404(b) Evidence Mr. Soria-Nanamkin next argues that the trial court erred in admitting evidence of his acts ofpriorviolence against Ms. Abrego. The trial court carefully consideredthe matter and struck a proper balance in admitting the evidence. Well-settled standards also govern this issue. Rulings admitting orexcluding evidence are reviewed for an abuse ofdiscretion. In re Det. of Duncan, 167 Wn.2d 398, 402, 219 PJd 666 (2009). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex reI. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). ER404(b) provides: Evidence ofother crimes, wrongs, or acts is not admissible to prove the character ofaperson in orderto show action in conformity therewith. It may, however, be admissible for otherpurposes, such as proofofmotive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Before 404(b) evidence may be admitted, there must be a showing that "(1) the evidence serves a legitimatepurpose, (2) the evidence is relevant to prove an element of the crime charged, and (3) the probative value outweighs its prejudicial effect." State v. Magers, 164 Wn.2d 174,184,189PJd 126 (2008). Relevant evidence is "evidence having any tendency to make the existence ofany fact that is ofconsequence to the determination ofthe action more probable or less probable than it would be without the evidence." ER401. Evidence is unfairly prejudicial where it creates an undue tendency 6No. 32461-3-III State v. Soria-Nanamkin

to suggest a decision on an improperbasis. State v. Cronin, 142 Wn.2d 568, 584, 14 P.3d 752 (2000); State v. Cameron, 100 Wn.2d 520, 529, 674 P.2d 650 (1983). Here, the trial court admitted the prior acts evidence to show Ms. Abrego's state of mind during the incident. Report ofProceedings (RP) at 509-510. Recognizing that Mr. Soria-Nanamkin had been charged with kidnapping and the lesser included offense of unlawful imprisonment, it was incumbent on the State to prove that the victim eitherhad been "abducted" or "restrained." RCW 9A.40.020, .040. Both ofthese elements can be proved by showingthat the victim was intimidated orthreatened with deadly force. RCW 9A.40.010(1), (6). Ms. Abrego testified thatMr. Soria-Nanamkin previously hadphysically abused her, made threats against her and her son, and also described an incident where Mr. SoriaNanamkin drove her into a remote area and threatened to leave her. The prosecutor accordingly relied onthis testimony to explain in closing why Ms. Abrego got inthe car with him: [Deputy Prosecutor]: She was forced into this. And conduct that she did not want to engage in. She did it because ofthe threats, and the violence, and the history ofviolence. Her state ofmind. 

### It really brings it to life. That's why. That's why she got into that car. RP at 560. The prior acts evidence was important to establish the victim's acquiescence to the defendant's threats, a critical element ofthe State's case. Sincethis was the pivotal issue


### 7No. 32461-3-III State 

### v. Soria-Nanamkin

on that count, the trial courtunderstandably assigned the probative value ofthe evidence significant weight that outweighed the prejudicial effect ofthe evidence. This was a tenable reason to admitthe evidence. The trial court did not abuse its discretion in admitting the evidence. IneffectiveAssistance o/Counsel Mr. Soria-Nanamkin next argues that his counsel provided ineffective assistance because he should have sought to exclude the portion ofhis taped interview in which he denied strikingMs. Abrego since it was inconsistent with his trial testimony. This argument fails on multiple levels. As with the two previous issues, very well-settled law governs ourreview ofthis claim. The Sixth Amendmentto the United States Constitution guaranty ofcounsel requires that an attorney performto the standards ofthe profession. Counsel's failure to live up to those standards will require a new trial when the client has beenprejudiced by counsel's failure. State v. McFarland, 127 Wn.2d 322, 333-335,899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to counsel's decisions. A strategic or tactical decision is not a basis for finding error. Stricklandv. Washington, 466 U.S. 668,689-691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, courts apply a two-prong test: whether or not (1) counsel'sperformance failed to meet a standard ofreasonableness and (2) actual prejudice resulted from counsel's failures. Id. at 690-692. When a claim can be disposed ofon one ground, a reviewing 

### 8No. 32461-3-II1 State v. Soria-Nanamkin

court neednot considerbothStricklandprongs. State v. Foster, 140 Wn. App. 266,273, 166 P.3d 726, review denied, 162 Wn.2d lO07 (2007). With these standards in mind, resolution ofthis argument is straight forward. First, Mr. Soria-Nanamkin does not explain the grounds on which the statement could have been excluded. Without doing so, he cannot establish that his counsel erred, let alone so significantly erred that counsel's conduct was notreasonable. We also note that there was a very significanttactical reason to permitthe statement into evidence. Atthe time the Staterested its case, it was unclear whetherthe defendant would testify ornot. RP at 437. Counsel could reasonably seeutility in permittingthe defendant's denial of culpabilitytobe admitted by the prosecutor in the eventthe defendant chose notto testify.The alleged error also would not have been prejudicial. Even ifthe statementhad been suppressed, the prosecutor was still free to have used the suppressed statementto impeach Mr. Soria-Nanamkin's contrary trial testimony. Harris v. New York, 401 U.S. 222,225,91 S. Ct. 643, 28 

### L. Ed. 2d 1 (1971). Given the defendant's decision to testify contrary tothe original statement, this admission still couldhaveproperlybeen considered by thisjury. Thus, any error in considering it in the first instance was rendered absolutely harmless bythe defendant's owntestimony. For all ofthese reasons, Mr. Soria-Nanamkin failed to establish thathis counsel rendered ineffective assistance. 9No. 32461-3-II1 State v. Soria-Nanamkin
Domestic Violence PerpetratorEvaluation and Treatment Lastly, Mr. Soria-Nanamkin contends that the court erred in requiring an evaluation once thejury declined to find that any ofthe crimes were committed against a household member. We believe the trial court was permitted to conclude that these crimes were domestic violence offenses. This court reviews the imposition ofa community custody condition for abuse of discretion. State v. Valencia, 169 Wn.2d 782, 793, 239 PJd 1059 (2010). A trial court may impose a sentence condition that is required orpermittedby law. State v. 0 'Cain, 144 Wn. App. 772, 775, 184 P.3d 1262 (2008). The legislature has provided courts with discretion to impose community custody conditions thatrequire the defendantto participate in rehabilitative programs related to the crime. RCW 9.94A.703(3)(d). Generally, a discretionary condition should be supported by evidence in the record that the condition is crime related. Cain, 144 Wn. App. at 775. The absence ofadomestic violence designation by thejury does not preclude domestic violence treatment. State v. Hagler, 150 Wn. App. 196,201,208PJd 32 (2009). RCW 9.94A.703(4)(a) states, in part, that the court may order "an offender convicted ofa crime ofdomestic violence, as defined in RCW 10.99.020" "toparticipate in a domestic violenceperpetratorprogram." In tum, RCW 10.99.020(3) defines "family
or household members" in part to include people who have dated and resided together in the past. The definition of"domestic violence" under the statute includes a "family or 10No. 32461-3-III State v. Soria-Nanamkin
household member" who commits second degree assault, first degree burglary, or unlawful imprisonment against another household or family member. RCW 1O.99.020(5)(b), (h), (q). Thejurywas properly instructed on the meaning of"family orhousehold members" in accordance with the terms ofRCW 10.99.020(3). Clerk'sPapers (CP) at 358. Each ofthe four special verdict forms then asked, "asto" each "count," "Were Francisco Javier Soria-Nanamkin and Tanya Abrego members ofthe same family or household?" CP at 365-368. Given that thejury answered "no"to the question on each form, Mr. Soria-Nananikin argues that the trial court could not ordertreatment for a "domestic violence offense" since thejury concluded the two were not family members. I We would give the verdict forms preclusive effect on this finding 

## if they had correctly asked the question presented by the facts ofthis case. The definition of "household member" includes adults who had lived together in the pastbutwere not currently living together. CP at 358. Thatwas the fact patternhere. The defendant and victim had dated and lived together in the past, although they were not doing so at the time ofthe offenses. However, the special verdict form did not ask the question ifthe couple "were orhadbeen members ofthe same family orhousehold." Instead, it simply

I Mr. Soria-Nananmkin does not argue that only thejury could determinethat the offenses were domestic violence offenses. Instead, he argues that the trial court made no such finding. We believethe court's determination to orderthe treatment was such a finding, ifone was explicitly needed. 

### 11No. 32461-3-III State v. Soria-Nanamkin
asked ""as to" each count ifthe two "were" members ofthe same family orhousehold. Thejuryunderstandably said ""no" eventhough both the defendant,and the victim had testified totheir priorrelationship. There was no family orhousehold member relationship at the time of the crimes, which was the question the form asked thejuryto
answer. Since the special verdict forms did not ask the correct question, the trialjudgewas not bound by the answer underthe facts ofthis case. Accordingly, the courtproperly exercised its discretion to order an evaluation and treatment ofMr. Soria-Nanamkin due to his three domestic violence offenses. Thejudgmentis affirmed. A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but itwill be filed for publicrecord pursuant to RCW 2.06.040.

WE CONCUR:
Lawrence-Berrey, J.

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