State v. Rattana Keo Phuong

Becker, J.

¶88 (dissenting) — I respectfully dissent from the majority’s decision to affirm Rattana Phuong’s conviction for unlawful imprisonment. My reasons are the same as those stated in my dissent in State v. Grant, 172 Wn. App. 496 , 295 P.3d 771 (2012). Phuong’s restraint of his estranged wife, Samouen Liem, was merely incidental to his attempts to rape her. Only the conviction for attempted rape should stand.

¶89 “A person is guilty of unlawful imprisonment if he or she knowingly restrains another person.” RCW 9A.40-.040(1). Like kidnapping, unlawful imprisonment has “restraint” as one of its elements. “Restrain” means “to restrict a person’s movements without consent and without legal authority in a manner which interferes substantially with his or her liberty.” RCW 9A.40.010(6). Restraint is without consent if accomplished by physical force, intimidation, or deception. RCW 9A.40.010(6).

¶90 The mere incidental restraint and movement of the victim during the course of another crime which has “no independent purpose or injury” is insufficient to establish a kidnapping. State v. Brett, 126 Wn.2d 136, 166 , 892 P.2d 29 (1995) (citing State v. Green, 94 Wn.2d 216, 227 , 616 P.2d 628 (1980)), cert. denied, 516 U.S. 1121 (1996). Likewise, the mere incidental restraint and movement of the victim that might occur during the course of another crime that *550 has “no independent purpose or injury” is insufficient to establish unlawful imprisonment. State v. Washington, 135 Wn. App. 42, 50-51 , 143 P.3d 606 (2006), review denied, 160 Wn.2d 1017 (2007).

¶91 In Washington, a husband ordered his wife into a car and restrained her when she tried to leave. He then committed assault by punching and choking her and hitting her head against the window. Distinguishing Green on its facts, this court found sufficient evidence to support conviction for unlawful imprisonment as well as assault. The restraint was not merely incidental to the assaults; the assaults “were acts of rage triggered by her brief act of independence.” Washington, 135 Wn. App. at 50-51 .

¶92 Phuong’s restraint of Liem had no purpose independent of his attempt to rape her, and it caused no independent injury. Phuong made clear throughout the incident that he was restraining Liem in order to rape her. Liem testified that Phuong started berating her in front of their children, calling her a “hooker,” and asking her to go upstairs and have sex with him. When she refused and tried to leave, he pulled her from her car, again saying he wanted sex, and dragged her up the stairs to his bedroom. Once they were inside the bedroom, Phuong struggled to get on top of Liem, pushing her onto a mattress on the floor, pulling her shirt down, and tearing her pants. Liem testified that as Phuong blocked her efforts to leave the bedroom, he again told her he wanted to have sex with her and still loved her.

¶93 Phuong’s restraint of Liem lasted no longer than his attempts to corral her into the bedroom and rape her. Liem suffered a knee injury when Phuong pulled her out of her car, but contrary to the State’s argument, the knee injury was not an injury independent of the attempted rape. When Phuong pulled Liem from the car, his express intent was to get her into the upstairs bedroom and rape her.

*551 ¶94 The prosecutor argued in closing that the restraint necessary for the unlawful imprisonment charge was shown in the following actions:

She was trying to drive away when he went up to her, grabbed her out the car, pulled her up the stairs, threw her in the room; and then when she was trying to leave, he kept shoving her back down and getting on top of her.

The prosecutor then included these same acts as the substantial step towards the commission of attempted rape:

Again, he doesn’t need to have sex with her. We have to show he had the intent to do it and what he did was a substantial step. ... He told her that he wanted to have sex with her. So already you know he’s thinking about having sex. He’s not thinking about pulling her up to the room so that he can beat the crap out of her. He’s not thinking of pulling her up in the room so he can yell at her. He wants to pull her up in the bedroom to have sex with her.

And so what he does is he uses force to get her upstairs to try to rape her. . . .

... He throws her in the room, shuts the door, locks the door to keep the kids from getting inside. And then, as Samouen described, he repeatedly pushed her down. She would try to get back up. He pushed her down. He got on top of her, and he ripped open her pants with such force that the fabric below it actually ripped out.

¶95 When viewed in the light most favorable to the State, the evidence shows the restraint was part and parcel of the attempted rape. The unlawful imprisonment conviction should be vacated for insufficient evidence and the charge dismissed with prejudice.

¶96 I dissent from the majority’s affirmance of the unlawful imprisonment conviction for the additional reason that the information was deficient. An essential element of unlawful imprisonment is that a person have knowledge that the restraint was “without legal authority.” State v. *552 J.C. Johnson, 172 Wn. App. 112, 139-40 , 297 P.3d 710 (2012), as modified on denial of reconsideration (February 13,2013). That element was not set forth in the information here.

¶97 The majority concludes that “without legal authority” is not an essential element of unlawful imprisonment. The majority believes this conclusion is compelled by our Supreme Court’s recent decision in State v. Allen, 176 Wn.2d 611 , 294 P.3d 679 (2013). Majority at 542-45 & n.42. The parties to this case have not had the opportunity to brief Allen’s possible impact on this case. In my opinion, Allen is distinguishable. Following J.C. Johnson , I would hold that even if Phuong’s conviction for unlawful imprisonment is upheld against his challenge to the sufficiency of the evidence, it should be reversed without prejudice because of the defective information.