LIED 

### COURT OF APPEALS DIVISION #,

X IN THE COURT OF APPEALS OF THE STATE 

# di S IIRGli 

# 3v STATE OF WASHINGTON STATE OF WASHINGTON,

v. ADRIAN JUAN TOMAS, DIVISION II
Respondent,

Appellant. UNPUBLISHED OPINION
HUNT, J. — 

### Adrian Juan Tomas appeals his jury trial conviction for first degree kidnapping,' 

### his sentences for his first degree kidnapping and first degree assault convictions,
and one of his community custody conditions. He argues that ( 1) the evidence was insufficient 

### to support the first degree kidnapping conviction as a separate crime because the restraint involved was merely incidental to the assault, (

### 2) the first degree kidnapping and first degree
assault constituted same criminal conduct for sentencing purposes, and ( 3) the trial court 

### exceeded its authority when it imposed a community custody requirement that he undergo a
chemical 

### dependency evaluation and treatment. The State concedes that the trial court erred in 

### requiring Tomas to obtain achemical dependency evaluation andtreatment,but itarguesthatthe trial court should impose an alcohol dependency evaluation and treatment condition in its place. 

### We affirm the kidnapping conviction and the sentences, but we remand for the trial court to strike the chemical dependency evaluation and treatment community custody requirement and to 

### consider imposing an alcohol dependency requirement.

1 Tomas does not appeal his assault conviction.No. 44389 - 9 -II FACTS I. KIDNAPPING AND ASSAULT 

### OnAugust 4, 2012, while Michael Wiley Lowe wasvisiting family in Shelton, he and his brother -

in-law," Adrian Juan Tomas, visited several local bars. 1 Verbatim Report of Proceeding ( VRP) at 53. After " last call," Lowe left the bar and attempted to get into Tomas' s truck because he was tired and wanted to sleep. 1 VRP at 56. 

### Finding the truck's doors locked, 

### Lowe climbed into the back ofthe truckand wentto sleep, believingthat Tomas would take him to his (Tomas' s) house to spend the night when Tomas returned.

Instead, when Tomas returned to his truck, he drove to a rural " clear cut" area near the local prison. 1 VRP at 81. 

### Lowe was awakened by Tomas' s " yelling at [him] and telling [him] to wake up." , 1 VRP at 57. Tomas pulled Lowe out of the truck and hit him with a " pipe." 1 

### VRP at 59. Lowe attempted to run away, butTomas chased him. Lowe eventuallytookthe pipe 

### from Tomas but returned it when Tomas displayed what appeared to be a gun and threatened to
shoot him. Lowe then hid in the bushes. Tomas told Lowe that he could see him and to come 

### out. When Lowe did not comply,Tomas left inthe truck. II. PROCEDURE 

### The State charged Tomas with attempted first degree murder with a deadly weapon enhancement, first degree 

### kidnapping, 

### and first degree assault with a deadly weapon 

### enhancement. The case proceeded to ajury trial.

The State' s witnesses testified as described above. Lowe further testified that he did not 

### willingly go to the " clear cut" areawith Tomas andthat he would not have gone there ifhe had
not been asleep in the truck. 1 VRP at 67. The State also presented surveillance tapes from a
2No. 44389 - 9 -II Shelton bar showing ( 1) Lowe and Tomas 

### drinking together, ( 2) 

### Lowe leaving the bar and 

### climbing into the back ofTomas's truck,and (3) Tomas later approaching the truck and driving away. Tomas did not present any evidence.

The

### jury found Tomas not guilty of attempted first degree murder. 

### It found him guilty of first degree 

### kidnapping under RCW 9A.40.020( 1)( c) ( 

### kidnapping with intent to inflict bodily injury) and first degree assaultwith a deadlyweapon enhancement. 

### Atthe sentencing hearing,the State advised thetrial courtthat (1) Tomas had no criminal history; (2) thetwo offenses were notthe same criminal conductfor sentencing purposes; and (3) it should impose consecutive sentences for these two " serious violent" offenses2 under RCW 9.94A.589( 1)( b). 3' 4 2 VRP at 290. The State also asked the trial court to impose " alcohol community custody] conditions" 

### because there was evidence that Tomas had been drinking when he committed the crimes. 2 VRP at 291.

2 RCW 9.94A.030(45)( a)( v), (vi). 3 The legislature amended RCW 9. 94A.589 in 2014. LAws OF 2014, ch. 101 § 1. The 

### amendments did not alter the statute in any way relevant to this case; accordingly, we cite the current version of the statute. 

### 4 RCW 9.94A.589(1)( b) provides, in part: Whenever a person is convicted oftwo or more serious violent offenses arising from separate and distinct criminal conduct, the standard sentence range for the offense with the highest seriousness level under RCW 9.94A.515 shall be 

### determined using the offender's prior convictions and other current convictions that are not serious violent offenses in the offender score and the standard 

### sentence range for other serious violent offenses shall be determined by using an offender score of zero.... All sentences imposed under this subsection ( 1)( b) 

### shall be served consecutively to each other and concurrently with sentences imposed under (a) ofthis subsection. Emphasis added).
3No. 44389-9-11
Tomas argued that the two offenses were the same criminal conduct. 

### Rejecting this argument, the trial court imposed consecutive sentences because the offenses did not occur in exactly the same location" and the " criminal intent" for each offense was different. 2 VRP at 294. The trial court also ordered " chemical 

### dependency" evaluation and treatment as a community custody condition. Clerk' s Papers ( CP) at 13. 

### Tomas appeals his kidnapping conviction, his consecutive sentences, and the " chemical dependency" evaluation and treatment community custody condition. ANALYSIS I. SUFFICIENCY OF EVIDENCE 

### Tomas first argues that the evidence was insufficient to prove the kidnapping charge because the restraint involved was ' merely incidental ' to the assault. Br. of Appellant at 6 quoting State v. Green, 94 Wn.2d 216, 227, 616 P.2d 628 ( 1980)). 

### Disagreeing, we hold that the incidental restraint doctrine does not apply underthese facts. 

### In reviewing an insufficient evidence claim, we review the evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the elements ofthe charged crime beyond a reasonable doubt. State v. Brown, 162 Wn.2d 422, 428, 173 P.3d 245 (2007). We weigh all reasonable inferences from the evidence in the State' s favor 

### and most strongly against the defendant. Brown, 162 Wn.2d at 428.

Abduction is an element offirst degree 

### kidnapping. RCW 9A.40. 020( 1). Abduction can take three forms, but each form necessarily involves restraint. RCW 9A.40.010( 1); Green, 94 Wn.2d at 225. " 

### When the State presents only evidence ofconduct that was merely incidental to the commission of another crime, no rational trier of fact could find that the evidence proves
4No. 44389 - 9 -II beyond a reasonable doubt that the conduct was a restraint." 

### State v. Berg, 177 Wn.App. 119, 136, 310 P. 3d 866 ( citing Green, 94 Wn.2d at 229 - 30), review granted in part, 179 Wn.2d 1028 2014). Whether this " incidental restraint doctrine" applies is a " fact-specific determination." 

### Berg, 177 Wn.App. at 130, 136 (citing State v. Elmore, 154 Wn.App. 885, 901, 228 P.3d 760, review denied, 169 Wn.2d 1018 (2010)). 

### We have applied this doctrine only when the kidnapping' s restraint and the non

### kidnapping offense are essentially contemporaneous and the defendant's movement ofthevictim

was either nonexistent or negligible; such is not the case here.

## 5 Here, the kidnapping restraint clearly exceeded what we have previously recognized as merely incidental to the other offense: 

### Tomas deliberately drove Lowe out oftown to a secluded, private area before assaulting him. 

### Unlikethe cases involving incidental restraint,the restraint did notoccur in aprivate areamerely because that is where the victim was at the time ofthe assault; nor did Tomas move Lowe only a
short distance before assaulting him.6 

### Accordingly, we hold that the evidence was sufficient to
prove the 

### kidnapping charge because the restraint it involved was not "'

## merelyincidental "'7to

5 See e.g., State v. Korum, 120 Wn. 

### App. 686, 690 - 92, 707, 86 P. 3d 166 ( 2004) ( restraint incidental to robberies when defendant restrained victims inside their homes to facilitate home invasion robberies), affd in part, rev 'd in part, 157 Wn.2d 614, 141 P.3d 13 ( 2006); 

### Berg, 177 

### Wn.App. at 123-24, 136 -38 ( restraint incidental to robbery when defendants restrained robbery victim inside his workshop while defendants took property from his nearby home); see also 

### Green, 94 Wn.2d at 224, 226 ( defendant moved murder victim 50 to 60 feet to open loading 

### dockthatwas visible from nearby public areas and apartments). 

### 6See, in contrast,thefacts inthe cases cited inpreceding footnote 5. 7 

### Br. ofAppellant at 6 (quoting Green, 94 Wn.2d at 227).

5No. 44389-9-11

the assault. 8 II. SAME CRIMINAL CONDUCT 

### Tomas next argues thatthe trial court erred in concluding thatthe kidnapping and assault were not same criminal conduct. Again,we disagree. We review a trial court' s determination of the same criminal conduct under RCW 9.94A.589( 1)( a) for abuse ofdiscretion or misapplication ofthe law. State v. Mutch, 171 Wn.2d 646, 653, 254 P.3d 803 ( 2011). 

### Atrial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 1995). Such is not the case here.



### 8 We notethat other divisions ofourcourt have rejected the incidental restraint doctrine and have refused to consider the alleged incidental nature of the restraint. 

### See e.g., State v. Phuong, 174 Wn. 

### App. 494, 536 - 37, 541 -42, 299 P.3d 37 ( 2013), petition for review filed, No. 88889 - 2 Wash. 

### May 31, 2013). 

### Nevertheless, we have expressly adhered to this doctrine in Berg, 177 Wn.App. at 130 -

31. 

### We note, however,that on May 27, 2014, our Supreme Court heard argument in Berg on the following issue: 

### Whether in a prosecution forfirst degree robbery and first degree kidnapping, the evidence of kidnapping is insufficient if it shows that the restraint ofthe victim was only "incidental" to the commission ofthe robbery. 

### Supreme CourtIssues: May Term 2014, WASH.COURTS, 

### http: / / www.courts.wa.gov /

appellate trial_courts/supreme/issues/ ? fa=atc_supreme_issues.display. fileID=2014May ( last visited 

### July 15, 2014) ( No. 89570 -8, State ( petitioner) v. 

### Berg & Reed respondents)). 

### Regardless ofwhetherthe Supreme Court approves or rejects Berg's incidental restraint doctrine, Tomas' s challenge to the restraint component ofhis kidnapping conviction would still 

### fail. Ifthe Supreme Court affirms our incidental restraint rationale in Berg, as we explain above, the facts underlying his 

### kidnapping and assault convictions do not fall within the doctrine. And 

### ifthe Supreme Court in Berg rejects the incidental restraint doctrine, then Tomas can no longer use this doctrineto challenge the sufficiency ofevidence supporting his kidnapping conviction.

6No. 44389-9-11 

### I]n sentencing serious violent offenses, the crimes will be sentenced consecutively to
each other ifthey arise from ` separate and distinct criminal conduct.' That standard is defined to be the same as the ` same criminal conduct' standard of RCW 9. 94A.589( 1)( a)." State v. Kloepper, 179 Wn.

### App. 343, 356, 317 P.3d 1088 ( footnote omitted) (

### citing State v. Brown, 100 Wn.

### App. 104, 112 -15, 995 P. 2d 1278 ( 2000), 

### aff'd inpart andrev 'd inpart, 147 Wn.2d 330, 58 P.3d 889 ( 2002)), review denied, 327 P.3d 55 ( 2014). RCW 9.94A.589( 1)( a) defines " same criminal conduct" as " two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim." 

### Ifany one ofthese elements is not met, the offenses are not same criminal conduct. State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 1997). 

### We narrowly construe the same criminal conduct analysis to disallow most assertions of same criminal conduct. State v. Wilson, 136 Wn.App. 596, 613, 150 P.3d 144 (2007). 

### Aperson is guilty offirst degree kidnapping when he intentionally abducts aperson with intent to inflict 

### bodily 

### injury. RCW 9A.40.020( 1)( c). 

### Tomas completed first degree kidnapping when he took Lowe into the woods with intent to assault him, regardless ofwhether Tomas ever 

### followed through with his intent to assault Lowe; thus, the kidnapping and the assault did not

occur at the same time. See State v. Larry, 108 Wn. 

### App. 894, 916, 34 P.3d 241 ( 2001) 

### kidnapping and robbery of same victim are not same criminal conduct when kidnapping occurred over a period oftime and in several locations, whereas the robbery occurred at a single time and place, not the same as that involved in the kidnapping "), review denied, 146 Wn.2d 1022 ( 2002). 

### Accordingly,we hold thatthe trial court did not abuse its discretion in finding that the two offenses were notthe same criminal conduct under RCW 9.94A.589( 1)( a).

7No. 44389 - 9 -II III. COMMUNITY CUSTODY CONDITION Finally, Tomas argues that the " chemical 

### dependency" evaluation and treatment 

### community custody condition was improper because the trial court failed to make a chemical dependency 

### finding as required under RCW 9. 94A.607( 1). 9 Br. of Appellant at 11. The State 

### concedes thatthe trial court erred in imposing this "chemical dependency" requirement and asks us to remand to the trial court to strike this condition and to impose instead an alcohol treatment requirement. Br. of 

### Resp' t at 22. 

### Although the record shows that alcohol use may have contributed to Tomas' s offenses, it does not show that Tomas had any chemical dependency other than alcohol. 

### Accordingly,we acceptthe State's concession and remand forthe trial courtto strike the chemical dependency evaluation and treatment requirement. Because the record would support a 

### finding that alcohol contributed to Tomas's offenses, the trial court may consider imposing an
alcohol evaluation and treatment requirement on remand, if supported 

### by the

9 RCW .

9.94A.607( 1) provides: 

### Where the court finds that the offender has a chemical dependency that has 

### contributedto his or her offense, the court may, as a condition ofthe sentence and subject to available resources, order the offender to participate in rehabilitative programs or otherwise to perform affirmative conduct reasonably related to the circumstances of the crime for which the offender has been convicted and 

### reasonably necessary or beneficial to the offender and the community in rehabilitating the offender.

8No. 44389-9-11



### necessary findings. We otherwise affirm Tomas's sentences and his kidnapping conviction. 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.

We concur: