State v. Green

Rosellini, J.

(dissenting) — I see no reason to depart from the position which we took upon the first hearing of this case with respect to the sufficiency of the evidence. The majority is much concerned with the holding in Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979), that a reviewing court must find sufficient evidence to justify the jury's finding that the State's case was proved beyond a reasonable doubt. I see no difference in substance between that test and the one which we have consistently applied. When we speak of "substantial evidence to support the verdict," we mean evidence to support a finding of guilt beyond a reasonable doubt, since that is what the jury's *242verdict must reflect. Of course, this court need not decide that it agrees with the verdict, for the credibility of witnesses is a matter for the jury. But our test has always been that there must be substantial evidence which, if believed, would support a finding of guilt beyond a reasonable doubt. If a part of this test is implied rather than express, it nevertheless governs our disposition of the question.

As far as the evidence in this case is concerned, I believe that reasonable minds could find without a doubt that the defendant kidnapped the victim, as that term is defined in the statute. One of the definitions is: "'Abduct' means to restrain a person by . . . using . . . deadly force." RCW 9A.40.010(2). That is precisely what the defendant did in this case. There is no question that the victim was restrained. She was kicking and screaming when first observed by the witness, and later she was further restrained by deadly force. The statute does not say "deadly force other than killing the victim." The majority would have us believe that the statute makes it a crime to use deadly force only if that force does not result in the death of the victim. It would seem clear to me that the kind of actions engaged in by the defendant in this case are precisely the kind of actions which the legislature intended to punish under the kidnapping statute. If the kidnapping did not culminate in the death of the victim, the only crime would be kidnapping, first degree. If the victim died as a result of the defendant's actions, the crime would be kidnap-murder. That the crime of kidnapping would merge with that of murder if the latter were proven to the jury's satisfaction, see State v. Johnson, 92 Wn.2d 671, 600 P.2d 1249 (1979).

As I hope we made clear in that case, the commission of a lesser crime may be only incidental to a greater crime, but that does not make it any the less a crime, which is an aggravating factor in the greater crime. If the greater crime is proven, the lesser crime merges in it, but it does not for that reason lose its efficacy as an element of the greater offense.

*243The majority argues that every killing must be kidnapping, because it results in "restraint." Under that analysis every assault is a kidnapping, because it likewise results in a "restraint," albeit a lesser one. I would interpret the statute as requiring some showing that restraint was a purpose of the attack, as was evidently the case here, since the defendant had grabbed the victim and carried her away from the place in which he found her.

The majority says that the people intended Initiative 316 to identify those crimes which are particularly outrageous. I wonder how much further they should have us look to find facts which fit that description. I would imagine that the people who voted in favor of the initiative will be surprised indeed to learn that it does not apply to a case in which a man grabs a young child and carries her away, and who, when she begins to kick and scream, silences her by means of a knife. Whether he threatened her with the knife before he killed her, we cannot know, since she is not here to testify. In that case, the majority would approve a kidnap-murder conviction; also, I gather, if he had traveled another 100 feet with her before he found a place of possible hiding. I doubt that this law was intended to hinge on such technicalities.

If there was substantial evidence to support a finding beyond a reasonable doubt that the defendant killed the victim in the course of kidnapping her, as I believe there was, then the further contention treated in the majority opinion, that the verdict may have rested on a finding for which there was inadequate support in the evidence, has no merit.

I would adhere to our decision in State v. Green, 91 Wn.2d 431, 588 P.2d 1370 (1979).

Wright and Brachtenbach, JJ., concur with Rosellini, J.

Reconsideration denied October 6, 1980.