Opinion
No. 30881-9-II
Filed: November 30, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County, Docket No. 03-1-00451-2. Judgment or order under review. Date filed: 08/29/2003. Judge signing: Hon. John a McCarthy.
Counsel for Appellant(s), Stephanie C Cunningham, Attorney at Law, 4616 25th Ave NE #552, Seattle, WA 98105.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Jonathan Eldwon Parks was convicted of second degree rape by forcible compulsion, unlawful imprisonment, and second degree theft. He appeals his convictions of unlawful imprisonment and second degree theft. Through counsel, he argues that the evidence was insufficient to support his unlawful imprisonment conviction because any restraint was incidental to the rape. In the alternative, he argues that the unlawful imprisonment conviction should be overturned because the court failed to give the jury a unanimity instruction. Pro se, he argues that his theft conviction was based on false or inconsistent testimony. We affirm.
Following an incident between Parks and his former girlfriend, Parks was charged with second degree rape by forcible compulsion (domestic violence), unlawful imprisonment (domestic violence), and second degree theft. He pleaded not guilty and the case was tried to a jury.
At trial, the former girlfriend testified that Parks was the father of her son, that he had been living with her while trying to address his drug problem, and that their relationship had not involved vaginal intercourse. The night before the rape, the two had engaged in some wrestling before settling onto the couch to watch a movie. Parks was behind her and started rubbing his penis on her. She objected, he appeared to get angry, and she went into her bedroom to sleep.
According to the victim, however, their relationship did involve occasional oral sex.
When she awoke the next morning, Parks was sleeping next to her. He was asleep but had his hand around her throat. She returned to the couch and went back to sleep. When she next awoke, Parks was sitting on the couch watching a movie and eating popcorn. He described a dream about them having sex and about her having sex with his friends. Although she thought the dream was `gross,' she thanked him for telling her about it. They then sat for a while and discussed the movie, in which a female character had been raped.
While they were still on the couch, Parks got on top of her and held her down for a minute. Because they had often wrestled in the past, she thought he was play wrestling, but he refused to let her up when she asked him to release her. After about five to seven minutes, he let her get up when she said she had to use the bathroom. She then returned to her bedroom to try to get more sleep.
A minute or so later, Parks followed her into the bedroom and held her down once again. Eventually however, he got up and returned to the living room. The victim also got up and tried on a dress that she had not worn since before becoming pregnant. Pleased that the dress still fit, she went into the living room and turned on the radio. When Parks saw her, he asked, `Where . . . do you think you are going?' Referring to the dream he had just described, she responded sarcastically "Oh, I am going to go see your friends at D`j vu," a strip club.
2 Report of Proceedings (RP) at 45.
2 RP at 45; see also 2 RP at 46.
Angered by her remark, Parks threw her onto her bed, held her down, and sat on her chest. While he was holding her down, he started looking around and asked her where the pillow was. She asked whether he wanted to kill her by smothering her with a pillow, and, according to what she later told a nurse at the hospital, he answered, `Yes.'
2 RP at 157.
No longer sure he was playing, she became frightened and tried to get out from under him. He refused to get off, they struggled, and she succeeded in getting out from under him a couple of times. Eventually however, he held her on her back with her hands above her head and sat on her chest. At some point, she got loose and pushed him against a wall. She intended to leave, but she was angry and tried to kick him first. He grabbed her and threw her onto the bed on her back.
By now, she thought he was trying to hurt her, and she was scared. She tried to get up but he was holding her down. When she saw their son watching from the bedroom doorway and tried to reach him, Parks grabbed her again and threw her back onto the bed. When she tried to get up again, he pushed her against the wall, knocking down their son in the process. Upset, she started to hit and slap him. He reacted by getting very angry, picking her up over his head, and slamming her into the floor at the foot of the bed. When she tried to get up, he sat on her.
Hoping to get free, she asked him to remove their son from the room. When he tried to do that, she jumped on him, making him angrier than she had ever seen him. He then threw her on the floor, put his hand on her face, and said that he was `this close to slapping the piss out of [her]' and `beating [her] ass.' Instead however, he picked her up and threw her onto the bed, flipped her onto her back, held her head in a pillow, and raped her vaginally. After he ejaculated, he lay on top of her and held her down for five to seven minutes. His penis was still inside her, and she was unable to get up and leave even though she wanted to do so. When she finally was able to flip onto her back, he continued to hold her down. Overall, according to her later testimony, he held her down for approximately 20 minutes after the rape.
2 RP at 59.
Finally, he got up and left the room. She donned pajama bottoms and a shirt, walked out of the bedroom, and encountered him in the hallway. He insisted that she take a shower, but she picked up her son, grabbed her car keys, and left before he could stop her. She drove to her mother's, reported what had happened, and went to a hospital where she was examined and gave a statement consistent with her later trial testimony.
When she returned home from the hospital, she discovered that her ATM card, another credit card, and money from her son's piggy bank were missing. Although she had allowed Parks to use her ATM card a few days before, she thought that he had returned it and that she had subsequently used it. She had not given him permission to keep the card or use it again. At trial, her bank records showed that someone had withdrawn over $500 from her account in a series of transactions after the ATM card was missing.
The case went to trial, and Parks elected to testify. He admitted making the charges in question, but said she had allowed him to use the card and that he had not taken it from her apartment without permission. He also said he had intended to repay her. He admitted taking $1.25 from his son's piggy bank for bus fare, claiming that he was merely taking back some money he had put in the bank.
Parks admitted that he had sex with the victim. He described physical confrontations in generally the same way as she had, although he suggested that she had been the aggressor. He denied forcing her to have sex, although he admitted that he did not specifically seek permission to have sex. He believed that she was initiating sex, that she was being a bit more aggressive than usual, but that otherwise she was behaving as she usually did under such circumstances.
The jury found Parks guilty as charged. The trial court found that the rape and unlawful imprisonment convictions constituted same criminal conduct. Parks now appeals only the unlawful imprisonment and theft convictions.
Insufficient Evidence
Parks contends that the evidence was insufficient to support the unlawful imprisonment conviction. He reasons that even if the State's evidence be accepted, the only time he restrained her was when he held her down immediately following the rape; that such restraint was merely incidental to and not independent of the rape; and that such restraint cannot support a separate charge of unlawful imprisonment.
Evidence is sufficient if a rational trier of fact viewing it in the light most favorable to the State could find beyond a reasonable doubt each element of the crime charged. A person is guilty of unlawful imprisonment if `he knowingly restrains another person.' To `restrain' means `to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with his liberty.'
Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).
In Green, an aggravated murder case, our Supreme Court found insufficient evidence of the aggravating factor of kidnapping when the defendant's acts of moving and restraining the victim were merely incidental to and not independent of the murder. In determining that the acts were incidental to the murder, the Court considered the short time frame involved, the minimal distance the defendant moved the victim, and the nature of the location to which the defendant moved the victim. But the Court also noted that each factor it considered would not necessarily be determinative in other cases and cautioned that whether an act that might support a separate offense was merely incidental to another offense must be determined on a case by case basis.
Green, 94 Wn.2d at 225-28.
Green, 94 Wn.2d at 226.
Green, 94 Wn.2d at 227.
Taken in the light most favorable to the State, the evidence here shows unlawful restraint not merely incidental to the rape. Parks repeatedly restrained the victim in the bedroom both before and after the rape. It can be inferred that during some of that time he was knowingly acting out of anger unrelated to the rape. Afterwards, he continued to hold her down on the bed, even after she had managed to turn over. Although these acts occurred in sequence with the rape, they were not so integrated with it as to be merely incidental to it. Unanimity Instruction
We do not overlook Parks' contention that during closing argument the prosecutor told the jury that the post-ejaculation restraint was the sole basis for the unlawful imprisonment charge. According to the record, however, the prosecutor argued that Parks had repeatedly restrained the victim over an extended period of time.
Parks further argues that because the State relied on the restraint that occurred after the rape and the evidence showed other instances of restraint, the trial court erred by failing to give a unanimity instruction. We disagree.
When the State charges the defendant with only one offense but presents evidence of multiple criminal acts, either the State must elect the specific act upon which it will rely for a conviction or the court must instruct the jury that it must agree as to what criminal act was proved beyond a reasonable doubt. Otherwise, the record will not show the jury unanimously found that the charged act occurred. Neither is required, however, when the evidence shows one continuing course of conduct. To determine whether the evidence so shows, a court examines the facts in a commonsense manner.
State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984), overruled on other grounds, State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988).
Kitchen, 110 Wn.2d at 409.
State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989) (unanimity instruction not required in assault case where defendant's acts of kissing and then later hitting victim were part of a continuing course of conduct) (citing Petrich, 101 Wn.2d at 571).
Handran, 113 Wn.2d at 17 (citing State v. Workman, 66 Wash. 292, 294-95, 119 P. 751 (1911); Petrich, 101 Wn.2d at 571).
In this case, a common sense evaluation of the facts shows that this was one continuing course of conduct. Accordingly, a unanimity instruction was not required. Pro Se Arguments
In his SAG, Parks argues that the evidence was insufficient to show theft because it was contradictory and inconsistent. He also alleges that the victim was lying.
As noted above, evidence is sufficient to support a conviction if a rational trier of fact viewing it in the light most favorable to the State could find beyond a reasonable doubt each element of the crime charged. But, in evaluating a sufficiency argument, we defer to the trier of fact, here the jury, on issues of conflicting testimony, witness credibility, and persuasiveness of the evidence. Because Parks' pro se arguments relate solely to conflicting evidence and witness credibility, we will not disturb the jury's decision.
Jackson, 443 U.S. at 318; Green, 94 Wn.2d at 221.
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
We affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J., and HUNT, J., concur.