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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

KEVIN JAMES PERKINS,

Appellant.

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No. 82291-8-I

DIVISION ONE

UNPUBLISHED OPINION

HAZELRIGG, J. — Kevin J. Perkins appeals from a conviction for kidnapping 

in the second degree and assault in the fourth degree after a jury trial. He contends 

there is insufficient evidence to sustain his kidnapping conviction, that his assault 

conviction violates double jeopardy, and that the court erred in calculating his 

offender score. Because there is insufficient evidence to demonstrate a completed 

kidnapping in the second degree, we remand for vacation of that conviction and 

entry of judgment for attempted kidnapping in the second degree. Further, we 

remand for a recalculation of Perkin’s offender score under Blake.

1

 We otherwise 

affirm the trial court.

FACTS

In September 2018, Kevin Perkins was charged with one count of attempted 

kidnapping in the first degree. The State later filed an amended information to add 

 

1 State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021).
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a sexual motivation aggravator and a second count of attempted indecent liberties 

in the first degree. He was tried before a jury, who returned a guilty verdict on two 

lesser-included offenses: kidnapping in the second degree (with no aggravator) 

and assault in the fourth degree.2 Perkins was sentenced to 84 months

imprisonment for count one, and 364 days for count two, to run concurrently. He 

timely appeals.

ANALYSIS

I. Sufficiency

Perkins first argues there is insufficient evidence to convict him of a 

completed kidnapping, and instead he should be convicted of attempted 

kidnapping in the second degree. He focuses on the element of abduction, 

alleging there was insufficient evidence to demonstrate he secreted or hid N.M.

The State bears the burden to prove each element of a crime beyond a 

reasonable doubt. State v. Butler, 165 Wn. App. 820, 829, 269 P.3d 315 (2012). 

Whether there is sufficient evidence to sustain a conviction is a constitutional 

question of law we review de novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 

746 (2016). We view all evidence in the light most favorable to the state to 

determine whether “‘any rational trier of fact could have found the essential 

elements of kidnapping beyond a reasonable doubt.’” State v. Berg, 181 Wn.2d 

 

2 During trial, Perkins sought a lesser included instruction on attempted kidnapping in the 

second degree. The State believed it had elicited sufficient testimony to support a conviction for a 

completed kidnapping, but could no longer amend the information to a completed kidnapping in the 

first degree, and argued for an instruction on completed kidnapping in the second degree as a 

lesser included offense. The trial court, based on the language of the statute, allowed instruction

on kidnapping in the second degree (completed) as a lesser included of attempted kidnapping in 

the first degree. Because Perkins did not assign error to this ruling, we do not review it.
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857, 867, 337 P.3d 310 (2014) (quoting State v. Green (Green II), 94 Wn.2d 216, 

221–22, 616 P.2d 628 (1980)). We defer “to the trier of fact on issues of conflicting 

testimony, credibility of witnesses, and the general persuasiveness of the 

evidence.” Butler, 165 Wn. App. at 829. “Circumstantial evidence and direct 

evidence are equally reliable.” State v. Briejer, 172 Wn. App. 209, 217, 289 P.3d 

698 (2012).

An individual commits kidnapping in the second degree if they “intentionally 

abduct[] another person under circumstances not amounting to kidnapping in the 

first degree.” RCW 9A.40.030. “Abduct” is defined as restraining another 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. The 

trial court’s instructions to the jury defined “abduct” as “to restrain a person by 

secreting or holding the person in a place where that person is not likely to be 

found.”

In considering whether a victim was secreted, we carefully examine “the 

setting of events and the physical surroundings.” Green II, 94 Wn.2d at 226. For 

example, in State v. Stubsjoen, our court held there was sufficient evidence to 

sustain a kidnapping conviction despite the fact that the child victim was held “in 

public areas where the child could easily be seen” “virtually all of the time” the 

defendant had the victim. 48 Wn. App. 139, 144, 145–46, 738 P.2d 306 (1987). 

Because the defendant acted “as though the child was her own,” the child’s 

parent/guardian and law enforcement officers would be unlikely to find the child. 

Id. at 145. In Green II, our state Supreme Court found a victim was not secreted 
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because the victim’s location was clearly visible “from the outside,” and there was 

no evidence “of actual isolation from open public areas.” 94 Wn.2d at 226. In 

State v. Billups, this court analyzed sufficiency in the context of an attempted 

kidnapping, finding the defendant had taken a substantial step by enticing two 

minors to get inside his van. 62 Wn. App. 122, 126–27, 813 P.2d 149 (1991). Had 

the victims complied and gotten inside of the van, he “would have been secreting 

or holding the girls in a place where they were not likely to be found.” Id. at 127.

The State argues there is sufficient evidence to sustain the conviction for a 

completed kidnapping because one of the streets at the intersection where the 

incident took place is dark and not frequently travelled, the area is wooded, Perkins 

took the victim’s cell phone, and the victim was far enough in the vehicle that her 

back was against the center console and her feet were off the ground (although 

her legs were outside of the vehicle and the vehicle door was open).

The State’s evidence of the kidnapping largely relies on the victim’s (N.M.)

testimony. N.M. described the intersection and the chronology of the incident in 

detail. She went for a run near her home around 10:00 in the evening after telling 

her mother she was leaving. She ran along 272nd street after turning around and 

heading back toward her home. She testified there was “a light on the road, so it 

was not dark,” and that “[l]ots of cars” were driving along the street. As she ran, 

she noticed a man (later identified as Perkins) outside his car, which was parked 

“by the light” on the side of the road. She noticed he was pretending to fix his tire 

but had no tools in his hand; she felt something was wrong and decided to turn 

around to avoid him. Perkins ran toward her and grabbed her, carrying her to his 
No. 82291-8-I/5

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car as she screamed. A fight ensued as Perkins tried to place N.M. into the car 

and she fought back, scratching him and kicking him. Perkins placed N.M. into the 

driver’s seat and tried to move her to the passenger side, but N.M. fought to stay 

in the driver’s seat with her legs out the open door.

On direct examination, the State asked N.M. numerous questions about her 

body position in the car; she testified her “bottom” was on the driver’s seat with her 

back facing the passenger side against the center console. Her legs were outside 

the vehicle. Later in her testimony, she reiterated that her legs “were not on the 

seat,” they were “[h]anging out of the side of the car,” and her feet were off the 

ground. Although N.M. testified she did not walk along that route often, she went 

on walks or runs with her sister along 272nd street that summer.

Even taking the evidence in the light most favorable to the State, there is 

not sufficient evidence to demonstrate N.M. was “secreted” or hidden in a place 

she was unlikely to be found. The incident took place along a public road that N.M. 

described as being “not dark,” with “lots of cars” driving by. Her mother knew she 

had gone out for a run and her sister knew the area as one they had run together. 

After Perkins grabbed her, N.M. was never fully in the car; she was able to keep 

herself out of the passenger seat and keep her legs outside the vehicle with the 

driver’s side door open.

“[W]hen an appellate court finds the evidence insufficient to support a 

conviction for the charged offense,” but a lesser offense was proved at trial, “it will 

direct a trial court to enter judgment on a lesser degree of the offense.” State v. 

Garcia, 146 Wn. App. 821, 830, 193 P.3d 181 (2008). Here, the jury was instructed 
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on a variety of lesser-included offenses, including attempted kidnapping in the 

second degree. To convict on attempted kidnapping in the second degree, the 

State had to demonstrate beyond a reasonable doubt that Perkins took a 

substantial step toward the commission of that crime with the intent to commit that 

crime. N.M.’s testimony that Perkins grabbed her, placed her in his vehicle, and 

attempted to move her to the passenger seat, is sufficient to find a substantial step 

toward committing the crime of kidnapping in the second degree with the intent to 

do so. Perkins concedes this, and asks this court remand for entry of a conviction 

on attempted kidnapping in the second degree. We accept Perkin’s concession 

and remand for the entry of an amended judgment.

II. Double Jeopardy

Perkins next contends his convictions violate double jeopardy. He argues 

(1) the attempted kidnapping and assault convictions are the same in law and fact, 

(2) the assault and attempted kidnapping convictions merge, and (3) the jury 

instructions do not sufficiently protect against double jeopardy.

Our state and federal constitutions protect a defendant from suffering 

“‘multiple punishments for the same offense.’” State v. Mutch, 171 Wn.2d 646, 

661, 254 P.3d 803 (2011) (quoting State v. Noltie, 116 Wn.2d 831, 848, 809 P.2d 

190 (1991)).

3

 We review this question de novo. Id.

 

3 See also U.S. CONST. amend. V; WASH. CONST. art. I, § 9.
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A. Same in Law and Fact

When a defendant has multiple convictions under different statutes, we 

apply the Blockburger4test to determine if the convictions are “the same in law and 

in fact.” State v. Villanueva-Gonzalez, 180 Wn.2d 975, 981, 329 P.3d 78 (2014) 

(quoting State v. Adel, 136 Wn.2d 629, 632–33, 965 P.2d 1072 (1998)). “‘If there 

is an element in each offense which is not included in the other,’” both convictions 

may stand. State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995) (quoting 

State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983)).

The State concedes there is no express authorization from our state 

legislature authorizing convictions for both kidnapping in the second degree and 

assault in the fourth degree.

Kidnapping in the second degree is governed by RCW 9A.40.030, while 

assault in the fourth degree is governed by 9A.36.041. As discussed earlier, 

kidnapping in the second degree involves intentionally abducting another person 

by secreting or holding them in a place where they will not be found or by use or 

threat of deadly force. RCW 9A.40.010(1), RCW 9A.40.030(1). Assault includes 

(1) an attempt to inflict bodily injury on another, (2) unlawful touching with criminal 

intent, and (3) placing another in apprehension of harm. State v. Frohs, 83 Wn. 

App. 803, 813, 924 P.2d 384 (1996).

The trial court’s instructions to the jury defined attempted kidnapping in the 

second degree as “a substantial step toward the commission of” kidnapping in the 

second degree “with [the] intent to commit that crime.” Kidnapping in the second 

 

4 Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
No. 82291-8-I/8

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degree was defined as occurring when an individual “intentionally abducts another 

person.” Abduct was defined as “to restrain a person by secreting or holding the 

person in a place where that person is not likely to be found.” Restrain was defined 

as “to restrict another’s movements without consent and without legal authority.” 

The court’s instructions to the jury defined assault as “an intentional touching or 

striking of another person that is harmful or offensive regardless of whether any 

physical injury is done to the person,” or “an act done with intent to inflict bodily 

injury,” or “an act done with the intent to create in another apprehension and fear 

of bodily injury.”

The court instructed the jury on attempted kidnapping in the second degree, 

and kidnapping in the second degree, as lesser-included offenses of attempted 

kidnapping in the first degree. It instructed the jury on assault in the second degree 

as a lesser-included offense of attempted indecent liberties. The attempted 

indecent liberties, and by extension the assault, was based on Perkins pulling 

N.M.’s down leggings several inches. The act of pulling N.M.’s leggings down 

several inches was necessary to accomplish “an intentional touching . . . that is 

harmful or offensive,” but not necessary to accomplish a substantial step toward 

kidnapping. Likewise, kidnapping requires a substantial step toward abduction or 

restraining an individual, but assault does not require any abduction or restraint.

On the record before us, Perkins may properly be convicted of an attempted 

kidnapping in the second degree based on the substantial steps he took toward 

abducting N.M., and of assault in the fourth degree for the offensive touching.
No. 82291-8-I/9

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B. Merger

Likewise, Perkin’s argument that the assault had no purpose other than to 

effectuate kidnapping fails. The merger doctrine prohibits “punishment for an 

offense which the legislature has clearly intended is not to be punished separately 

from the greater offense.” State v. Garcia, 65 Wn. App. 681, 689, 829 P.2d 241 

(1992). “[S]uch intent has been found where proof of one crime is a necessary 

element or constitutes proof of another crime.” Id.

The State relied on Perkins’s act of pulling down N.M.’s leggings several 

inches to support its allegation of assault in the fourth degree as an offensive 

touching. This offensive touching was not required to abduct N.M.—she was 

already in Perkin’s vehicle, and there was no evidence the act of pulling down her 

leggings three inches was in an effort to abduct or restrain N.M. As such, the 

merger doctrine does not preclude conviction on both the attempted kidnapping 

and assault charges.

C. Instructional Error

Perkins next alleges the jury instructions were deficient because they did 

not prevent the jury from convicting him of both kidnapping and assault based on 

the same conduct.

“We review challenges to jury instructions de novo, within the context of the 

jury instructions as a whole.” State v. Berg (Berg II), 147 Wn. App. 923, 931, 198 

P.3d 529 (2008) (disapproved in part by Mutch, 171 Wn.2d 646). Jury instructions 

must make it “manifestly apparent” to the jury that the State may not impose 

multiple punishments for the same offense. Id.
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In Mutch, our state Supreme Court found jury instructions were inadequate 

where no instruction “expressly stated that the jury must find that each charged 

count represents an act distinct from all other charged counts,” and all of the toconvict instructions “were nearly identical, including that they all indicated the same 

time of occurrence of the criminal conduct.” 171 Wn.2d at 662. This was error 

despite the fact that the jury was instructed “[a] separate crime is charged in each 

count. You must decide each count separately. Your verdict on one count should 

not control your verdict on any other count.” Id.

The trial court here used an identical jury instruction as that in Mutch, with 

no additional instruction stating each charged count represents a distinct act. Each 

to-convict instruction also indicated the same period of time, similar to Mutch. 

However, Mutch considered more than the jury instructions alone in determining if 

there had been a double jeopardy violation. The court considered “the evidence, 

arguments, and instructions,” to determine if it was “‘manifestly apparent to the jury 

that the State [was] not seeking to impose multiple punishments for the same 

offense,” and that the State based each count on a separate act. Id. at 664 

(alterations in original) (quoting Berg II, 147 Wn. App. at 931). Indeed, the court in 

Mutch found that despite deficient jury instructions, there was no double jeopardy 

violation and upheld all five convictions. Id. at 665.

Again, the State was clear in its closing argument that the basis for the 

attempted indecent liberties (and lesser-included assault) was Perkin’s act of 

pulling down N.M.’s pants. This made it “manifestly apparent” to the jury that the 

other acts that arguably could have been construed as supporting the assault 
No. 82291-8-I/11

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charge were in support of the attempted kidnapping in the first degree (and lesser 

included attempted kidnapping in the second degree), not the assault. Likewise, 

it was manifestly apparent to the jury that the act of pulling down N.M.’s pants 

several inches was not in support of an attempted kidnapping, but attempted 

indecent liberties (and assault in the fourth degree). The definitional instruction, 

which defines assault as “an intentional touching . . . that is harmful or offensive 

regardless of whether any physical injury is done,” supports that each count was 

based on a separate act.

III. Sentencing

Perkins finally argues he was sentenced on an incorrect offender score. 

The court counted two prior offenses as two separate points, though Perkins 

asserts they constitute the same criminal conduct and should have only been 

counted as one point. He also alleges he should be resentenced under Blake, 

which the State concedes.

We review a trial court’s decision regarding same criminal conduct for an 

abuse of discretion or a misapplication of law. State v. Hatt, 11 Wn. App. 2d 113, 

138, 452 P.3d 577 (2019). “Crimes constitute the same criminal conduct when 

they ‘require the same criminal intent, are committed at the same time and place, 

and involve the same victim.’” State v. Chenoweth, 185 Wn.2d 218, 220, 370 P.3d 

6 (2016). All three elements must be present to demonstrate the two crimes are 

the same criminal conduct. Id.

In 2008, Perkins was convicted of burglary and unlawful possession of a 

firearm. The firearms were stolen as part of the burglary. Perkins argues he had 
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the same criminal intent for the burglary and the unlawful possession (to possess 

the firearms) and they had the same victim (the owner of the firearms and other 

stolen property). The State counters that the victim of the burglary was the owner 

of the property and the victim of the unlawful possession of a firearm is the general 

public.

This court, and our state Supreme Court, have previously held that the 

victim of unlawful possession of a firearm is the general public. See State v. 

Haddock, 141 Wn.2d 103, 110–11, 3 P.3d 733 (2000); see also Hatt, 11 Wn. App. 

2d at 142. In Haddock, the court explained that the victim of unlawful possession 

of a firearm was the general public, while the victim of possession of stolen firearms 

was the owner of the property. 141 Wn.2d at 111. While all crimes impact the 

general public, possessing stolen firearms “directly inflicted specific injury on 

individuals.” Id.

While the guns Perkins possessed were stolen, he was not convicted of 

possessing stolen firearms, but unlawful possession of firearms under RCW 

9.41.040(b) because he had previously been convicted of a felony. Our prior case 

law is clear that the public is the victim of this crime, while the victim of burglary is

the owner of the property. As such, the crimes have different victims and are not 

the same criminal conduct.

We remand for vacation of the conviction for kidnapping in the second 

degree, entry of judgment for attempted kidnapping in the second degree and 

resentencing pursuant to Blake.
No. 82291-8-I/13

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Reversed in part, affirmed in part and remanded.

WE CONCUR: