State v. Berg

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

MADSEN, C.J.-We consider whether there is sufficient evidence to support a

kidnapping charge if the conduct constituting kidnapping is incidental to a separately

charged crime of robbery. Defendants Daylan Berg and Jeffrey Reed were convicted of

robbery in the first degree and kidnapping in the first degree in violation of RCW

9A.56.200 and RCW 9A.40.020. On appeal, Division Two of the Court of Appeals held

that because the only evidence of kidnapping was conduct incidental to the robbery, the
No. 89570-8

evidence oflddnapping was insufficient under the due process clause. U.S. CONST.

amend. XIV,§ 1; WASH. CONST. art. I,§ 3. Accordingly, the Court of Appeals vacated

the kidnapping convictions. Consistent with this court's decision in State v. Green, 94

Wn.2d 216, 616 P.2d 628 (1980) (Green II), we hold that when kidnapping and robbery

are charged separately, whether the kidnapping activity is incidental to the robbery is

immaterial to the sufficiency of the evidence of kidnapping. We reverse the Court of

Appeals and reinstate the kidnapping convictions.

FACTS AND PROCEDURE

At the time of the incident, the victim, Albert M. Watts, resided in Vancouver,

Washington, and held a medical marijuana card that permitted him to legally grow

marijuana plants. The State's evidence showed that on the evening of April15, 2009,

Daylan Berg and Jeffrey Reed broke into the back door of Watts's garage while Watts

was watering his marijuana plants. Reed held a semiautomatic pistol to Watts's head and

ordered him to get on the ground. Watts complied. Responding to Reed's instructions,

Berg held down Watts with his knee while pointing the gun at his head. While Berg

restrained Watts, Reed went back and forth between the garage and the house, at some

point taking Watts's wallet and phone and ripping up his marijuana plants.

During the course of the robbery, Watts was pinned to the ground for

approximately 30 minutes. Whenever Watts tried to move beneath Berg's knee, Berg

threatened that they would kill him. Before leaving the premises, Berg and Reed

promised to find and kill Watts if he talked to police about what had transpired. They

2
No. 89570-8

also told him to remain on the floor for an additional15 minutes after they left. Watts

stayed on the floor for just a few minutes, then got up and eventually connected with

police who were already at the scene outside. Later, as Berg and Reed were trying to

escape, Sargent Jay Alie pulled them over and Berg shot the police officer in the chest.

Based on this conduct, the State charged Berg and Reed with five separate counts:

attempted murder in the first degree (based on the shooting of Sargent Alie), burglary in

the first degree, kidnapping in the first degree, robbery in the first degree, and

intimidating a witness. Reed was also charged with unlawful possession of a firearm in

the first degree. The two cases were consolidated for trial in Clark County Superior

Court, and the jury convicted Berg and Reed on all counts. The court imposed an

exceptional sentence of 500 months for the attempted murder count and 748 months of

total confinement for both Berg and Reed.

On appeal to Division Two of the Court of Appeals, Berg and Reed contended,

among other things, that the trial court did not have sufficient evidence to convict them of

kidnapping because the kidnapping conduct was merely incidental to the robbery. 1 State

v. Berg, 177 Wn. App. 119, 136-38,310 PJd 866 (2013) (partially published). The

Court of Appeals credited the defendants' argument and held that the trial court lacked

sufficient evidence to convict Berg and Reed of kidnapping, citing this court's decision in

Green II as controlling. The Court of Appeals relied on its prior decision in State v.

1
Defendants also alleged a public trial right violation, prosecutorial misconduct, ineffective
assistance of counsel, insufficient evidence of witness intimidation, a divided jury verdict, error
in rejecting Reed's motion for mistrial, and cumulative error. State v. Berg, 177 Wn. App. 119,
122-23,310 P.3d 866 (2013). The Court of Appeals rejected all ofthese arguments, and this
court declined further review. !d. at 123.

3
No. 89570-8

Korum, 120 Wn. App. 686, 702-03, 86 P.3d 166 (2004), which had interpreted Green II

to create a due process standard that evidence of kidnapping is insufficient where the

kidnapping is incidental to another crime.

All parties petitioned this court, and we accepted review of the State's petition on

March 6, 2014. 2

DISCUSSION

This case presents the question of whether Green created a new due process

standard that evidence of kidnapping is insufficient to prove kidnapping where the

conduct is merely incidental to another crime. The sufficiency challenge here arises in

the context of robbery and kidnapping charges. Accordingly, it is useful to review the

elements and the statutory framework for these crimes.

"Robbery" is defined as the unlawful taking of personal property from the person

of another or in his or her presence, against his or her will, by the use or threatened use of

force, violence, or fear of injury to any person or property. RCW 9A.56.190. If the State

proves these basic elements, the defendant may be convicted of robbery in the second

degree. RCW 9A.56.210. If, however, the State also proves one of the additional

elements outlined in RCW 9A.56.200, the defendant's conviction may be elevated to

robbery in the first degree. In this case, Reed and Berg were convicted of robbery in the

first degree because the jury found the State had proved one of these additional elements,

namely that "in the commission of a robbery or of immediate flight therefrom" they

2
Berg and Reed also filed petitions for review, but this court denied both. Though only the
State's petition was accepted for review, the State is identified as the respondent pursuant to a
letter ofthe court dated November 22, 2013.

4
No. 89570-8

"[d]isplay[ed] what appear[ed] to be a firearm or other deadly weapon." RCW

9A.56.200(1 )(a)(ii).

"Kidnapping" is defined as the intentional abduction of another person. RCW

9A.40.030. Abduction can be shown by proving either restraint by secretion or restraint

by use or threat of deadly force. RCW 9A.40.010(1). "Restraint" is defined as a

restriction of a person's movement without his or her consent and without legal authority,

in a manner substantially interfering with that person's liberty. RCW 9A.40.010(6).

Kidnapping in the first degree is established by proof of these basic elements plus proof

that the defendant kidnapped with the intent to engage in one of five enumerated actions.

RCW 9A.40.020. Here, Berg and Reed were convicted of first degree kidnapping

because the jury found they intentionally abducted another person with the intent "[t]o

facilitate commission of any felony or flight thereafter." RCW 9A.40.020(l)(b ).

The defendants argued, and Division Two agreed, that the jury had insufficient

evidence to convict them of kidnapping because their kidnapping conduct was merely

incidental to the robbery of Watts. Though sufficiency of the evidence cases have

borrowed the terminology, the analysis of whether one crime is incidental to another

crime originated as a concern in the context of merger. In order to clarify and distinguish

our sufficiency jurisprudence, a brief discussion of merger concepts is useful.

"Merger" is a "doctrine of statutory interpretation used to determine whether the

Legislature intended to impose multiple punishments for a single act which violates

several statutory provisions." State v. Vladovic, 99 Wn.2d 413, 419 n.2, 662 P.2d 853

5
No. 89570-8

(1983). The judiciary has developed the merger doctrine over time as an extension of

double jeopardy principles. U.S. CONST. amend. V. The double jeopardy clause protects

against double prosecution and multiple punishments for the same offense. State v.

Johnson, 92 Wn.2d 671, 678-80, 600 P.2d 1249 (1979) (quoting Brown v. Ohio, 432 U.S.

161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977)), disapproved on other grounds by

State v. Sweet, 138 Wn.2d 466,478-79, 980 P.2d 1223 (1999). Because the legislature

has the power to define criminal conduct and assign requisite punishment, "the Fifth

Amendment double jeopardy guarantee serves principally as a restraint on courts and

prosecutors." Brown, 432 U.S. at 165. Accordingly, whether a conviction offends the

double jeopardy clause typically depends on the language ofthe relevant statute and

legislative intent to permit or disallow multiple punishments for the criminal conduct at

issue. State v. Louis, 155 Wn.2d 563, 568-69, 120 PJd 936 (2005). The merger doctrine

aids courts in assessing this legislative intent where a defendant's conduct meets the

definition of more than one statutory provision. It represents an '"aversion to prosecuting

a defendant ... based on acts which are so much the part of another substantive crime

that the substantive crime could not have been committed without such acts and that

independent criminal responsibility may not fairly be attributed to them.'" State v.

Green, 91 Wn.2d 431, 458-59, 588 P.2d 1370 (1979) (Green I) (Utter, J. dissenting)

(quoting People v. Cassidy, 40 N.Y.2d 763, 765-67, 358 N.E.2d 870, 390 N.Y.S.2d 45

(1976)).

6
No. 89570-8

In Johnson, this court held that the legislature intended lddnapping charges to

merge into rape charges where the lddnap elevated the seriousness level of rape. 92

Wn.2d at 675-76. The Johnson court arrived at this decision through a careful dissection

of the statute for rape in the first degree, which provided that the prosecutor prove "not

only that the defendant committed rape, but that the rape was accompanied by an act

which is defined as a separate crime elsewhere in the criminal statutes." !d. at 675 (citing

former RCW 9.79.170 (1979), recodified as RCW 9A.44.040). The court concluded that

"the legislature intended that punishment for first-degree rape should suffice as

punishment for crimes proven in aid of the conviction, which are incidental to and

elements of the central crime." !d. at 678 (emphasis added). Because the evidence there

showed the sole purpose of the lddnapping was to compel the victim's submission to

rape, the court concluded the crimes merged.

We outlined the general rule for merger in a later case, Vladovic. There we

explained that

the merger doctrine is a rule of statutory construction which only applies
where the Legislature has clearly indicated that in order to prove a
particular degree of crime (e.g., first degree rape) the State must prove not
only that a defendant committed that crime (e.g., rape) but that the crime
was accompanied by an act which is defined as a crime elsewhere in the
criminal statutes (e.g., assault or kidnapping).

99 Wn.2d at 420-21. Then, we described an exception to this rule. Where two offenses

would otherwise merge but have "independent purposes or effects," separate punishment

may be applied. !d. at 421 (citing Johnson, 92 Wn.2d at 680). Essentially, the merger

doctrine states that where crime A and crime Bare charged separately and completion of

7
No. 89570-8

crime A is also an element of crime B, crime A will definitely merge into crime B if

crime A was incidental to the commission of crime B. If crime A was not incidental but

rather had an independent purpose, it falls within the described exception and courts may

impose separate punishment. Thus, the incidental nature of the crime is relevant to the

application of an exception to the general merger doctrine. 3

In Vladovic, the court held that lddnapping cannot merge into robbery, but it did

imply that robbery could merge into lddnapping because "[t]he first degree lddnapping

statute applicable in this case specifically requires proof of another felony in order to

elevate the crime to first degree lddnapping." Id. Later, the court revised that statement

in In re Personal Restraint of Fletcher, 113 Wn.2d 42, 52-53, 776 P.2d 114 (1989),

reasoning that the kidnapping statute does not require proof of another felony but only

proof of intent to commit a felony. "Thus, the Legislature has not indicated that a

defendant must also commit another crime in order to be guilty of first degree

lddnapping, and therefore the merger doctrine does not apply." !d. at 53. Hence, the law

is now settled that just as lddnapping can never merge into robbery, neither can robbery

merge into lddnapping. Louis, 155 Wn.2d at 571 (reaffirming the holdings of Vladovic

and Fletcher that lddnapping and robbery never merge).

With this background in mind, we tum to the question of whether Green II held

that due process requires more than an incidental restraint to support a lddnapping

3
Though Berg and Reed do not raise a merger argument, it merits mentioning that this court has
definitively held that kidnapping and robbery never merge. In re Pers. Restraint ofFletcher, 113
Wn.2d 42, 52-53, 776 P.2d 114 (1989); Vladovic, 99 Wn.2d at 421.

8
No. 89570-8

conviction. We hold that Green II did not alter the analysis of what evidence is sufficient

to prove kidnapping.

The purpose of the sufficiency inquiry is to "ensure that the trial court fact finder

'rationally appl[ied]' the constitutional standard required by the due process clause of the

Fourteenth Amendment, which allows for conviction of a criminal offense only upon

proof beyond a reasonable doubt." State v. Rattana Keo Phuong, 174 Wn. App. 494,

502, 299 P.3d 37 (2013) (alteration in original) (quoting Jackson v. Virginia, 443 U.S.

307,317-18,99 S. Ct. 2781,61 L. Ed. 2d 560 (1979)). "In other words, the Jackson

standard is designed to ensure that the defendant's due process right in the trial court was

properly observed." Id. Accordingly, to assess the sufficiency of the evidence of

kidnapping this court considers "whether, after viewing the evidence most favorable to

the State, any rational trier of fact could have found the essential elements of lddnapping

beyond a reasonable doubt." Green II, 94 Wn.2d at 221-22 (emphasis omitted). We take

the State's evidence as true, and our review is de novo.

In Green II, the State proffered evidence showing that the defendant picked up an

eight-year-old girl while she was walldng on the sidewalk, placed his hand over her

mouth, and carried her a short distance to the back of an apartment building. A neighbor

who witnessed the incident found the victim lying dead in a pool of blood with a butcher

knife beside her. !d. at 222-24. The defendant was convicted of aggravated murder in

the first degree, aggravated by the fact that the murder was committed in furtherance of

lddnapping. Id. at 219 (citing former RCW 9A.32.045(7) (1980)). The Green II court

9
No. 89570-8

thus reasoned that conviction for aggravated first degree murder in that case required

proof of the elements of kidnapping. Id. at 224-25; see RCW 9A.40.010, .020.

Applying the new United States Supreme Court sufficiency standard announced in

Jackson, Green II held there was insufficient evidence of the elements of kidnapping and

therefore remanded the charge of aggravated first degree murder for a new trial focused

on the alternate aggravating factor of rape. 94 Wn.2d at 219. First, the court noted that

abduction could be proved in one of two ways: (1) restraint by secreting or holding a

person where she is not likely to be found or (2) restraint by means of deadly force or

threat of deadly force. The court then analyzed the evidence and observed

the unusually short time involved, the minimal distance the victim was
moved ... the location of the participants when found, the clear visibility of
that location from the outside as well as the total lack of any evidence of
actual isolation from open public areas.

!d. at 226-2 7. The court concluded that no rational trier of fact could have found beyond

a reasonable doubt that the victim had been restrained by means of secretion. !d.

Additionally, the court held there was no evidence of restraint by means of threat to use

deadly force and rejected the defendant's argument that restraint by deadly force could be

shown by the ldlling itself. !d. at 228-30. Accordingly, the court held there was

insufficient evidence oflddnapping and necessarily insufficient evidence of aggravated

first degree murder based on lddnapping. Id. at 230.

In a later case, State v. Brett, 126 Wn.2d 136, 892 P.2d 29 (1995), this court was

again presented with a challenge to the sufficiency of the evidence of lddnapping in a

charge of aggravated first degree murder. Brett and his girl friend randomly selected the

10
No. 89570-8

home of an elderly, upper-middle class couple to rob and murder. The pair had planned

to enter the elderly couple's homes at night, restrain them until morning when their bank

opened, force them to withdraw money, and then kill them by lethal injection. Here, their

plan derailed when the elderly couple's security alarm went off and the wife escaped.

Brett shot and killed the husband with a sawed-off shotgun. I d. at 147-49. Brett was

charged with aggravated first degree murder, with the allegation that the murder was

committed in the course of, in furtherance of, or in immediate flight from robbery and

burglary. Id. at 150.

There the court held that the State produced sufficient evidence that the murder

occurred in the course of a kidnapping and therefore established the aggravator for the

murder charge. The court reasoned that the defendants had an overarching plan to kidnap

wealthy elderly people, transport them to their bank to withdraw money, and later kill

them. Brett made a similar argument to that of the defendants here-namely, that the

State had not proved the abduction element of kidnapping because the restraint was

incidental to the murder. Id. at 166. But the court rejected that argument and held that

"[t]he jury could rationally have found Brett and Martin were 'in the course of a

kidnapping when the plan went awry, and Brett murdered Mr. Milosevich." Id. at 167.

The State argues that Green II did not announce a new analysis for sufficiency of

the evidence focusing on whether kidnapping was incidental to another crime. In

contrast, the defendants cite Green II and Brett to support their argument that where a

kidnapping is incidental to another crime, that evidence is insufficient evidence of

11
No. 89570-8

kidnapping. In particular, Berg and Reed highlight a secondary observation in Green II

in which the court stated:

Moreover, although appellant lifted and moved the victim to the
apartment's exterior loading area, it is clear these events were actually an
integral part of and not independent of the underlying homicide. While
movement of the victim occurred, the mere incidental restraint and
movement of a victim which might occur during the course of a homicide
are not, standing alone, indicia of a true kidnapping.

94 Wn.2d at 226-27 (emphasis omitted) (citing Johnson, 92 Wn.2d at 676). The

defendants claim this language shows the court created a new due process requirement

that a kidnapping that is incidental to the commission of another crime cannot establish

sufficient evidence of the abduction element of kidnapping in any circumstances. The

defendants contend that Brett reinforced this interpretation of Green II by recognizing

that "[t]his court has held and the State concedes that 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 kidnapping." Brett, 126 Wn.2d at 166. The

Brett court cited Green II and Johnson as support for this statement and included

parentheticals explaining that those cases held that "kidnapping merges into first degree

rape." !d.

Viewed in isolation, this language from Green II and Brett does suggest that the

incidental nature of a crime is always relevant to whether there is sufficient evidence of a

"true kidnapping." Division Two of the Court of Appeals employed such an

interpretation in Korum and again in this case. Berg, 177 Wn. App. at 136-38; Korum,

120 Wn. App. at 702-03. But this court closed the door on this analysis in Vladovic. In

12
No. 89570-8

addition to making a merger argument, the petitioner in Vladovic brought a separate

sufficiency challenge, alleging that his kidnapping charge could not stand because "the

acts did not bear the indicia of a true kidnapping." Vladovic, 99 Wn.2d at 424 (alluding

to language from Green II). The petitioner contended that Green II mandated such a

holding. But this court disagreed in a succinct discussion of Green II. The court

explained that "[ w ]e stated in Green [II] that an ultimate killing of a victim does not itself

constitute the restraint necessary to prove kidnapping," clarifying that Green II' s holding

rested on an assessment of the sufficiency of the evidence of the statutory elements of

kidnapping and did not create a broader due process incidental restraint requirement for

kidnapping charges. Id. The court concluded that "Green [II] is inapposite" and

concisely rejected the petitioner's argument. Id.; see also Phuong, 174 Wn. App. at 527-

28 (employing a similar interpretation of Vladovic).

Division One has addressed the issue at length. First, in State v. Grant, 172 Wn.

App. 496, 301 P.3d 459 (2012), the court held that incidental restraint is purely a merger

issue and rejected petitioner's invitation to adopt Division Two's interpretation of Green

II. "[Green II] does not support the evidentiary analysis," the court reasoned, because in

contrast to the current case, "Green was not separately charged with rape or lddnapping.

Green [II] was therefore not a merger case." Id. at 503 (footnote omitted). The Grant

court went on to reason that Green II did not intend to adopt a new standard for

sufficiency of the evidence. "Borrowing merger terminology to describe the weaknesses

13
No. 89570-8

in the state's evidence is not the same as announcing a new approach to appellate review

Where our court announces a new test, it is inclined to say so." Id. at 506.

Division One reinforced this understanding in Phuong, where it applied the Grant

reasoning to the unlawful imprisonment context, engaging in an in-depth review of our

complicatedjurispmdence in this area. The court analyzed this court's decisions in

Green I, Johnson, Green II, Vladovic, Fletcher, and Louis and held that the incidental

nature of a kidnapping is irrelevant to the sufficiency of the evidence for a discrete

unlawful imprisonment charge. Phuong, 174 Wn. App. at 511-32. The court reasoned

that the incidental restraint language used in Green II and cited by the petitioner

"implicates the merger doctrine" and not the sufficiency of the evidence. Id. at 522.

Division Three is in accord with Division One. Division Three considered the

issue in State v. Butler, 165 Wn. App. 820, 828-29,269 P.3d 315 (2012), where the

petitioner relied on Division Two's interpretation and contended that because the

lddnapping was incidental to the robbery, the jury lacked sufficient evidence to convict

him oflddnapping. The Butler court strongly rejected this argument, citing this court's

jurispmdence addressing similar questions on the basis of merger, not sufficiency of the

evidence, and holding that lddnapping and robbery do not merge. Id. at 829-33.

We agree and take this opportunity to clarify that Green II did not alter the

sufficiency of the evidence analysis for 1ddnapping based on whether the lddnapping was

"incidental" to another crime and to reinforce the distinction between concepts of merger

and sufficiency of the evidence. Whether the jury had sufficient evidence to convict is a

14
No. 89570-8

distinct question from whether two convictions should merge. Sufficiency of the

evidence considers whether there was enough evidence proffered from which a jury could

find beyond a reasonable doubt that the elements of the crime had been proved. Merger

accepts that there was sufficient evidence of the elements of the crime but considers

further whether the legislature nevertheless intended for one of the offenses to be

extinguished because of its redundant consideration within the primary offense. This

court has never held that evidence of lddnapping is insufficient where the lddnapping

conduct is incidental to another crime as a matter of due process. Instead, lddnapping

conduct incidental to another crime has been addressed as an issue of merger and we

have held that lddnapping and robbery never merge.

As applied to the facts of this case, we hold that the evidence presented was

sufficient to support the lddnapping convictions. To prove lddnapping in the first degree,

the State must show an intentional abduction with intent to facilitate the commission of

any felony or flight thereafter. RCW 9A.40.020. Abduction can be proved in three

ways; most relevant here is restraint by threat of deadly force. RCW 9A.40.010(1).

Restraint, moreover, exists where a person's movement is restricted without consent in a

way that interferes with his or her liberty. RCW 9A.40.010(6). Taldng the evidence in

the light most favorable to the State, there is sufficient evidence of lddnapping here.

Reed instmcted Berg to hold down Watts; Berg complied and held Watts at gunpoint on

the ground for approximately 30 minutes. A jury could conclude that this established

restraint. Berg restrained Watts by threat of deadly force, repeatedly threatening to ldll

15
No. 89570-8

Watts if he moved from the ground, and both men threatened to kill Watts if he contacted

police. This proof of restraint by threat of death was sufficient for a jury to conclude an

abduction occurred. Finally, Berg and Reed were in the process of stealing Watts's

marijuana plants and other possessions when they engaged in this lddnapping conduct. A

jury could conclude that Berg and Reed committed the lddnapping with an intent to

facilitate the commission of a felony. Accordingly, we hold there was sufficient evidence

for a jury to find all elements of kidnapping proved beyond a reasonable doubt.

CONCLUSION

We hold that the lddnapping convictions for both defendants were supported by

evidence sufficient for a rational jury to find all the elements of lddnapping beyond a

reasonable doubt. Contrary to the defendants' assertions, Green II did not create a new

requirement that due process is not satisfied when the lddnapping conduct is incidental to

the commission of another crime. Accordingly, we reverse the Court of Appeals and

reinstate the defendants' lddnapping convictions.

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No. 89570-8

WE CONCUR:

17
State v. Berg (Daylan E)/State v. Reed (JeffreyS.), No. 89570-8
Gordon McCloud, J., Concurrence

No. 89570-8

GORDON McCLOUD, J. (concurring)-The majority concludes that "[State

v.] Green[, 94 Wn.2d 216, 616 P.2d 628 (1980) (Green II)] did not alter the analysis of

what evidence is sufficient to prove kidnapping." Majority at 8. It does so by

characterizing Green II as an application of the merger doctrine instead of a

sufficiency ofthe evidence case. !d. at 13-15.

In fact, neither the majority nor the concurring opinions in Green II discussed

the merger doctrine at all. Green II, 94 Wn.2d at 216, 218-35, 235-40 (Utter, C.J.,

concurring), 240-41 (Dolliver, J., concurring in result). Instead, they agreed that

when the evidence shows that a kidnapping was "actually an integral part of' another

crime, that evidence is insufficient to establish kidnapping beyond a reasonable

doubt. !d. at 226-27. The court reached this conclusion under the heading "F AlLURE

OF EVIDENCE To PROVE ESSENTIAL ELEMENTS OF FIRST DEGREE KIDNAPPING UNDER

JACKSON V. VIRGINIA." !d. at 224 (citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.

2781, 61 L. Ed. 2d 560 (1979)).

1
State v. Berg (Daylan E.) IState v. Reed (JeffreyS.), No. 89570-8
Gordon McCloud, J., Concurrence

Indeed, Green II was a reconsideration, 1 which this court granted so that it

could apply the United States Supreme Court's then-recent decision in Jackson. 2

Jackson held that a conviction violates Fourteenth Amendment due process clause

protections if it is based upon evidence that is insufficient to lead a rational trier of

fact to find guilt beyond a reasonable doubt. Jackson, 443 U.S. at 307, 318-19; U.S.

CONST. amend. XIV, § 1.

Applying the holding in Jackson, the Green II court held that where a

defendant was convicted of kidnapping, that conviction would be overturned if the

kidnapping was "merely incidental to the commission of another crime." Green II,

94 Wn.2d at 227 (citing People v. Cassidy, 40 N.Y.2d 763, 767, 358 N.E.2d 870,

390 N.Y.S.2d 45 (1976)). The court explained that this due process standard

required a fact-specific inquiry into the "nature" of the abduction at issue:

Although we characterize the movement and restraint in this case
as incidental, we do not mean to suggest that under every conceivable
set of facts a movement of 20 to 50 feet or being found in a stairwell
would be incidental. That which constitutes incidental movement is

1
State v. Green, 91 Wn.2d 431, 588 P.2d 1370 (1979) (Green 1).

2
Green II, 94 Wn.2d at 220 ("There is, however, an even more salient reason for
departing from our view in Green I. Shortly after the publication of Green I, the United
States Supreme Court held in Jackson[, 443 U.S. 307], that on review the proper test is
whether there was sufficient evidence to justify a rational trier of fact to find guilt beyond
a reasonable doubt.").

2
State v. Berg (Daylan E.)/State v. Reed (JeffreyS.), No. 89570-8
Gordon McCloud, J., Concurrence

not solely a matter of measuring feet and inches. It is a determination
to be made under the facts of each case, in light of the totality of
surrounding circumstances. This characterization is as much a
consideration of the relation between the restraint and the homicide as
it is a measure of the precise distance moved or place held. It involves
an evaluation of the nature of the restraint in which distance is but one
factor to be considered.

!d. at 227. In short, Green II held that for purposes of Fourteenth Amendment due

process protections, an "incidental" kidnapping was no kidnapping at all. !d. Its use

of the word "incidental" may have suggested merger, but the Green II court was

really inquiring about whether defendant's movement of the victim was really de

mm1m1s.

The majority rejects that holding, but it purports to distinguish Green II as a

merger case that did not involve a robbery charge. 3 That distinction is untenable.

Instead of reinterpreting Green II as a merger case, the majority should acknowledge

that it is really overruling Green II.

But we do not overrule our own prior precedent unless it is "incorrect and

harmful." State v. Berlin, 133 Wn.2d 541, 547, 947 P.2d 700 (1997). If Green II

3
Majority at 14-15 ("This court has never held that evidence of kidnapping is
insufficient where the kidnapping conduct is incidental to another crime as a matter of due
process. Instead, kidnapping conduct incidental to another crime has been addressed as an
issue of merger and we have held that kidnapping and robbery never merge.").

3
State v. Berg (Daylan E.) IState v. Reed (JeffreyS.), No. 89570-8
Gordon McCloud, J., Concurrence

were a merger case, then it would probably be incorrect because it would have

conflated the double jeopardy principles underlying the merger doctrine with the due

process protections at issue in Green II. And some of the citations in Green II do

suggest that that decision relied on merger principles. 94 Wn.2d at 227 (citing State

v. Johnson, 92 Wn.2d 671, 676, 600 P.2d 1249 (1979); Cassidy, 40 N.Y.2d at 767).

But other citations suggest that Green II relied on sufficiency-of-evidence principles.

E.g., id. at 227-28 (applying Jackson).

The reliance on Jackson is not incorrect. Indeed, other courts have held that

minimal or de minimis movements of a victim are insufficient to prove a true

kidnapping (or kidnapping sentence enhancement). E.g., United States v. Marx, 485

F.2d 1179, 1186 (lOth Cir. 1973) (insufficient evidence to support forced

'"accompan[iment]"' aggravating factor, and drawing from common law meaning

of "kidnap"); United States v. Strobehn, 421 F .3d 1017, 1020 n.1 (9th Cir. 2005)

(sufficient evidence despite minimal movement), 1022-27 (Fletcher, J., dissenting)

(insufficient evidence). And if there is any question about whether the statute was

intended to reach de minimis movements, the answer must be based on the rule of

lenity.

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State v. Berg (Day/an E)/State v. Reed (JeffreyS.), No. 89570-8
Gordon McCloud, J., Concurrence

It is certainly true that, as the majority states, Green II has generated conflict

in the Court of Appeals. 4 Majority at 12-14. It is also true that Green II's "merely

incidental" analysis, 94 Wn.2d at 227, has led to arguably inconsistent results based

on individual judges' feelings about whether the State has overcharged. 5

But the solution is not to recharacterize Green II as a merger case rather than

a due process case and then overrule it without saying so. The solution is to

acknowledge that Green II was based on Jackson, to recognize that Green II's

"incidental" language was essentially a de minimis inquiry, and to apply that de

minimis inquiry to this case.

The 30-minute forced detention of the victim in this case, by physical restraint

and the threat of death with a gun to the victim's head, is certainly not de minimis-

regardless of whether it is "incidental" to another crime. It is lengthy, major,

4 Compare State v. Rattana Keo Phuong, 174 Wn. App. 494,519-20,299 P.3d 37
(20 13) (explaining that Green II is really a merger case), with State v. Grant, 172 Wn. App.
496, 503, 301 P.3d 459 (2012) (explaining that Green II is not a merger case).
5
Compare State v. Lindsay, 171 Wn. App. 808, 840-44, 288 P.3d 641 (2012)
(kidnapping merely incidental under Green II, where defendants first took unconscious
victim's property, then tied the victim up and proceeded to "demean, humiliate, and
assault" him), with State v. Whitney, 44 Wn. App. 17, 21, 720 P.2d 853 (1986) (under
Green II, kidnapping was not merely incidental to rape where defendant forced victim into
his car at knifepoint).

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State v. Berg (Daylan E)/State v. Reed (JeffreyS.), No. 89570-8
Gordon McCloud, J., Concurrence

culpable, and terrifying. I therefore concur in the majority's decision to affirm. But

I respectfully disagree with what I see as its decision to silently overturn controlling

precedent on the insufficiency of evidence issue.

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State v. Berg (Daylan E)/State v. Reed (JeffreyS.), No. 89570-8
Gordon McCloud, J., Concurrence

7