Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County No. CRF22453, Eleanor Provost, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dana R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Dawson, J., and Kane, J.
OPINION
INTRODUCTION
Appellant, Charles Thomas Anderson, was charged in an amended information with kidnapping (Pen. Code, § 207, subd. (a), count one), false imprisonment by means of violence (§ 236, count two), and resisting a peace officer (§ 148, subd. (a)(1), count three). It was further alleged that Anderson had a prior serious felony conviction within the meaning of the three strikes law and was subject to two prior prison term enhancements. Prior to trial, Anderson waived his constitutional rights and admitted count three. The court granted a motion to bifurcate the truth of the prior serious felony allegation and the prior prison term enhancements.
Unless otherwise specified, all further statutory references are to the Penal Code.
At the conclusion of the prosecution’s case, the trial court granted a defense motion to dismiss the kidnapping allegation pursuant to section 1118.1. The jury found Anderson guilty of the false imprisonment by means of violence allegation. Anderson waived his right to a jury trial on the truth of the special allegations. The court found these allegations true.
The trial court sentenced Anderson on March 14, 2007, to state prison for the midterm of two years on count two, which was doubled to four years pursuant to the three strikes law. The court added consecutive sentences of one year for each prior prison term enhancement for a total prison term of six years. The court imposed a restitution fine and granted applicable custody credits. The court also ordered Anderson to have no contact with the victim, her family members, her residence, her place of employment, or her school.
On appeal, Anderson contends the trial court erred in failing to give the jury a mistake of fact instruction. Anderson further contends, and respondent concedes, that the court erred in ordering him to stay away from the victim.
FACTS
In August 2006, Sylvia Olsen began having a romantic relationship with Anderson. The two were still in that relationship at the time of trial. The relationship had a pattern in which at times they were together and at other times they broke up. The day before Olsen went gambling on November 2, 2006, Olsen broke up with Anderson because he was not going to let her go gambling.
At around noon on November 2, 2006, Olsen was at the Chicken Ranch Casino with a friend. They had driven to the casino in the friend’s car. Olsen talked to Anderson earlier that day by phone. Olsen encountered Anderson at the casino. Anderson said to Olsen, “Let’s go home.” Olsen described herself as stubborn, hardheaded, and a person with a gambling problem. Olsen told Anderson she wanted to stay.
Olsen was convicted of three felonies in 2005 for commercial burglary, possession of stolen property, and possession of checks. At the time of trial, she was incarcerated in county jail.
Olsen explained that she and Anderson had an agreement a month earlier that “[i]f he caught me in the casino, he was to take me home.” Olsen reiterated she has a big problem with gambling, she wanted to stay and play, and she is hardheaded. Anderson knew Olsen had a limited amount of money that she was to use for her son’s birthday, and she was gambling it away.
The agreement Olsen had with Anderson was for her “to leave and go with him no matter what it takes.” Olsen stated that Anderson, “was supposed to take me home,” and “[g]et me out of there.” Olsen was asked whether there was an agreement concerning how much violence Anderson could use to follow through with their agreement. Olsen did not initially answer the question. She was asked again whether she told Anderson that he could use as much violence as needed and whether that was part of their agreement. Olsen replied, “Well, no.” When asked whether she had an understanding with Anderson concerning his use of violence on her, Olsen replied, “I told him to get me – to take me home whatever it takes.”
In response to Anderson’s statement that they should go home, Olsen said no, she did not want to go home. According to Olsen, Anderson told her he would drag her out by her hair. She replied, “No, you won’t.” Olsen got up, and started to go outside with Anderson. Anderson was grabbing Olsen by the arm and the hair. In reply to a question concerning why Anderson had to grab her hair if she was willing to leave the casino, Olsen said she is very stubborn and did not want to leave. Olsen explained she was also intoxicated. Olsen explained that Anderson’s grabbing of her was not “real hard” and did not hurt.
Anderson took Olsen to the doors leading outside when someone said, “hey.” Olsen turned around, Anderson’s arm twisted, and she ended up on the floor. Olsen thought she probably tripped over her own feet. Anderson did not help Olsen back to her feet. Olsen described herself as still acting stubborn and pigheaded. Olsen testified that Anderson pulled her to the ground by her hair. Olsen stated she “was more mad than hurt.” Olsen was angry because she wanted to stay and gamble. Olsen said the pain she felt was seven on a scale where ten hurt a lot and one hardly hurts.
Olsen described herself as being nervous about having to go home and not being able to play. She was not scared because everything happened very quickly. Olsen walked over to a garbage can and sat down. Anderson went to his vehicle. Olsen did not follow Anderson to his car because she wanted to stay and gamble. Anderson told Olsen she “was through” as he walked away. Olsen was upset because Anderson was angry at her. When Anderson made his comment, Olsen was concerned for her safety, “[a] little bit.”
Olsen denied she did not go with Anderson out of fear that he might hurt her. Olsen explained she was with her girlfriend and wanted to stay at the casino. A security guard found some of Olsen’s hair that had been pulled off her head. Olsen admitted she did not tell investigators about her agreement with Anderson because she was angry at him.
Olsen explained she loved Anderson and was: “just mad, and I wanted to do whatever it takes to help Charlie [Anderson] get out of this. He doesn’t deserve this. Charlie has never even raised a voice at me. He’s never hit me. This was just one [of] those relationship mishaps. That’s all it was.” The jury was shown a surveillance videotape of the interaction between Anderson and Olsen.
After viewing the video, Olsen admitted she did not trip over her feet. She struggled with Anderson as he actually used his hands to twist her to the ground. When asked why she was trying to minimize what happened, Olsen said she did not recall how she ended up on the floor. Olsen did recall Anderson telling her she was through and she was “going to pay for this.” Olsen further admitted she was afraid for her safety when Anderson pulled her away.
Olsen told an investigator, Deputy Hobbs, that she had broken up with Anderson over the issue of gambling the night before the incident. She told Hobbs that Anderson did not want her to go gambling. When asked if Olsen explained to Hobbs that she told Anderson by phone to stay away from her, Olsen replied she could not remember. Olsen told Hobbs that Anderson attempted to forcibly take her from the casino and she wanted to stay and gamble. She did not tell Hobbs about gambling away her son’s birthday money because she was ashamed of her behavior.
Olsen called the jail the day Anderson was arrested and said she wanted the charges against him dropped. Olsen later called the district attorney’s office, and subsequently faxed them a letter, stating that she wanted the charges against Anderson dropped. The first instance that Olsen told anyone about the agreement between her and Anderson was when she told defense counsel. Olsen denied a question by the prosecutor that there never was an agreement. Olsen insisted there was an agreement.
Olsen stated that Anderson implemented this agreement to use force to remove her from a casino twice. The incident on November 2, 2006, was the second occasion. Olsen suffered the loss of some hair and some scrapes on her back.
The jury was shown photographs depicting Olsen’s injuries.
On cross-examination, Olsen explained she was only afraid of being unable to stay and gamble. According to Olsen, she had a contract or agreement with Anderson. When asked if she thought Anderson violated their contract on November 2, Olsen replied, “No.” Olsen further elaborated: “No, I don’t. I think he was doing what I asked him to do.”
On redirect examination, Olsen stated she thought she was just making a report. She admitted she told investigators she had a relationship with Anderson, and, although they “fooled around a little,” their relationship was “nothing serious.” She also told investigators she did not consider their relationship to be intimate. Olsen admitted telling the deputy that Anderson was going to sock her in the face. Olsen admitted Anderson forcibly grabbed her by the hair and dragged her toward the door and that he twisted her to the floor.
Olsen conceded she told the deputy “the part about just having sex” because she did not want to get Anderson into trouble. Olsen explained she was intoxicated and drunk. On a scale of one to ten, Olsen described her intoxication as “probably a seven.” Deputy Hobbs told Olsen that if she was intimate with Anderson, he could be charged with spousal abuse.
A casino security supervisor, Clayton Barnes, testified he was standing outside the casino when he heard scuffling and the casino doors swing open. Barnes heard commotion. Customers and employees were screaming and yelling. Anderson was holding Olsen by the hair and was dragging her out of the casino. Olsen was shaking. She looked like she was shocked at what just happened. Female casino employees were trying to calm Olsen.
Barnes further described Olsen’s demeanor as shaking, scared, and angry at the same time. Olsen was a regular patron of the casino. Barnes described Anderson as looking “pretty angry.” Barnes viewed the security video and explained that it accurately depicted the incident. Barnes took down the license plate number and make of Anderson’s truck, later giving it to Hobbs.
Deputy Hobbs was dispatched to investigate the incident. When Hobbs arrived, he contacted Olsen. Hobbs, who had experience with people under the influence of alcohol and controlled substances, did not believe Olsen was under the influence when he contacted her. Hobbs described Olsen’s demeanor as visibly shaken up. Olsen was crying and seemed to be in shock. Olsen told Hobbs she had known Anderson about three weeks, they had “fooled around,” but she did not consider their relationship to be serious. Olsen told Hobbs she had broken up with Anderson the day before the incident.
Olsen told Hobbs she was scared, Anderson was going to be mad, and Anderson was not going to be happy with her. Olsen never told Hobbs about a preexisting agreement with Anderson.
ALLEGED INSTRUCTIONAL ERROR
Appellant contends the trial court erred in refusing to give an instruction on reasonable belief of consent. Appellant also contends the trial court failed to give an instruction on reasonable mistake of fact because a “reasonable mistaken belief in [Olsen’s] consent, based on her equivocal conduct of asking him to remove her by any means necessary, would be a defense to the charge.” According to appellant, Olsen’s testimony brought into focus appellant’s belief that Olsen freely agreed to the restricted movement. Appellant contends the trial court erred by failing to instruct, sua sponte, on the defense of reasonable and good faith belief in consent, a defense recognized by the California Supreme Court in People v. Mayberry (1975) 15 Cal.3d 143, 153-158 (Mayberry).
Trial Proceedings
Defense counsel requested a portion of the kidnapping instruction, CALCRIM No. 1215, that states: “The defendant is not guilty of kidnapping if [he] reasonably and actually believed that the other person consented to the movement. The People have the burden of proving beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person consented to the movement. If the People have not met this burden, you must find the defendant not guilty of this crime.”
In relevant part, CALCRIM No. 3406, which was not requested by defense counsel, states:
The trial court rejected the requested instruction because it was not included in CALCRIM No. 1240. The court further rejected the requested language because the court did not “believe that one ever consents to being dragged by the hair on the ground – actually dragged by the hair on the ground. And [the court] [did not] believe the jury could find that consent.”
The trial court instructed the jury with the following version of CALCRIM 1240:
In closing argument to the jury, defense counsel argued that appellant did what he and Olsen had previously agreed to and that appellant’s behavior was consistent with that agreement. Defense counsel argued that if appellant was angry with Olsen, he could have simply punched her. Instead, appellant took Olsen out of the casino according to their agreement. Defense counsel further described the understanding between appellant and Olsen as “a personal agreement between the two of them based on a resolution of a real serious personal problem of compulsive gambling.”
Counsel pointed out that Olsen was drunk when appellant confronted her. Defense counsel argued appellant had good intentions trying to honor their prior agreement. Appellant was only following Olsen’s instructions. Counsel suggested appellant could have been more persuasive or talked longer to Olsen, but appellant acted with good intentions.
The Mayberry Standard
Defense counsel’s requested instruction borrowed language from CALCRIM No. 1215, the kidnapping instruction. Although defense counsel did not request CALCRIM No. 3406, the instruction for a mistake of fact defense, the language in CALCRIM No. 1215 defense counsel sought to add to the instruction was substantially similar to CALCRIM No. 3406 with regard to appellant’s mistake of fact defense. We initially note that in seeking an instruction raising the issue of a reasonable mistake of fact, appellant’s trial counsel preserved the issue of instructional error for appellate review. We turn to appellant’s contention that he was entitled to a sua sponte Mayberry instruction.
“The Mayberry defense has two components, one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy this component, a defendant must adduce evidence of the victim’s equivocal conduct on the basis of which he erroneously believed there was consent. [¶] In addition, the defendant must satisfy the objective component, which asks whether the defendant’s mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction. [Citations.]” (People v. Williams (1992) 4 Cal.4th 354, 360-361, fn. omitted (Williams).)
The jury viewed evidence in the form of a videotape, and heard testimony from Olsen and security guard Barnes, that Olsen physically resisted appellant’s application of force to remove her from the casino. Olsen testified that appellant removed her pursuant to an advance agreement to do so. According to appellant, the issue of reasonable doubt concerning his mistaken belief in consent has been raised by Olsen’s testimony concerning a preexisting agreement. “The defendant bears the burden of raising a reasonable doubt as to whether he harbored a reasonable and good faith but mistaken belief of consent [citations], ‘and then only if the prosecution’s proof did not of itself raise such a doubt.’ [Citation.]” (Williams, supra, 4 Cal.4th at p. 361.)
“A trial court’s duty to instruct, sua sponte, on particular defenses arises ‘“only if its appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.”’ [Citations.]” (People v. Maury (2003) 30 Cal.4th 342, 424; People v. Barton (1995) 12 Cal.4th 186, 195.) “Substantial evidence” in this regard has its common meaning in law: “‘evidence which is reasonable, credible, and of solid value[.]’ [Citations.]” (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.)
Raising a Mayberry consent defense does not automatically compel a sua sponte instruction. (People v. Romero (1985) 171 Cal.App.3d 1149, 1154; see Williams, supra, 4 Cal.4th at p. 362, fn. 7.) It has been held that “a reasonable belief of consent instruction is not required and should not be given where the defense is express consent.” (People v. Burnett (1992) 9 Cal.App.4th 685, 691, italics added; see also People v. Bruce (1989) 208 Cal.App.3d 1099, 1105 [no evidence supporting Mayberry defense where defendant challenged victim’s credibility and argued actual consent, not belief in consent].)
Appellant relies in substantial part on People v. Burnham (1986) 176 Cal.App.3d 1134 (Burnham). There was evidence in Burnham from the defendant that the victim of alleged sexual offenses was “a willing participant in all the charged offenses.” (Id. at pp. 1142-1143.) In Burnham, the defendant testified that that the victim consented to each alleged sex crime, telling the defendant she was willing to continue each act and assuring the defendant she could handle it. There was also circumstantial evidence in Burnham from which the jury could infer the victim consented to the acts. (Id. at p. 1148.) Burnham recognized the difference between unequivocal consent in which the Mayberry instruction was not required, and equivocal consent which could raise the issue of a defendant’s misunderstanding concerning whether the victim consented to the act in question. (Id. at p. 1147.) Burnham found, however, that a defendant relying on a Mayberry defense must produce some evidence of equivocal conduct by the victim. (Id. at p. 1146.)
Burnham and other authorities recognize that the mere offer of the defense of consent is not synonymous with substantial evidence of mistake of fact. (Burnham, supra, 176 Cal.App.3d at p. 1147; People v. Rhoades (1987) 193 Cal.App.3d 1362, 1369 (Rhoades); People v. Gonzalez (1983) 141 Cal.App.3d 786, 792-793 (Gonzalez).)
Evidence of Victim’s Equivocal Conduct
In the instant action, there was no equivocal conduct by Olsen indicating her acquiescence as appellant tried to remove her from the casino. During the alleged false imprisonment by force, appellant had to pull Olsen so hard by her hair that he pulled out a clump of it. Olsen resisted appellant the entire time. The security guard, Barnes, heard yelling and screaming as appellant approached the exit with Olsen. Barnes saw appellant pulling Olsen by the hair. She was shaking after appellant left and had to be consoled by casino employees. Olsen appeared to Barnes to be in shock. The jury viewed a videotape of the incident. Barnes explained that he viewed the videotape and it was an accurate depiction of what he saw.
Deputy Hobbs described Olsen’s demeanor as shaken up, she was crying and appeared to be in shock. Hobbs did not believe Olsen was under the influence when he contacted her. Olsen told Hobbs she was scared, Anderson was going to be mad, and Anderson was not going to be happy with her. Olsen did not tell Hobbs or anyone about her agreement with appellant on the day of the incident. In Burnham, unlike the instant action, there was evidence of the victim’s consent during the alleged crimes. There is nothing about the events of November 2, 2006, from which the jury could infer that Olsen’s conduct was equivocal concerning appellant’s conduct.
We therefore find Burnham to be factually distinguishable from this case. As in Williams, there was no equivocal conduct by the victim here. (Williams, supra, 4 Cal.4th at p. 363.) There was no evidence at trial, and appellant did not testify, that he had a factual basis relating to a mistaken belief in consent. (Rhoades, supra, 193 Cal.App.3d at pp. 1369-1370.) Unlike Burnham where the defendant testified that during the alleged sexual crimes the victim verbally indicated her consent, no similar communication occurred here during the actual incident. Also, there was no equivocal conduct by the victim here that could be misinterpreted by appellant. Where there is no substantial evidence of the victim’s equivocal conduct, the defendant is not entitled to the mistake of fact instruction. (See People v. Maury, supra, 30 Cal.4th at p. 424; Rhoades, supra, 193 Cal.App.3d at p. 1369.) There is no evidence here of the appellant’s state of mind concerning a mistaken belief which could negate the intent element of the offense.
Evidence of Victim’s Consent
There was, of course, evidence from the victim herself that she had a preexisting agreement with appellant for him to remove her from a casino “no matter what it takes.” Olsen explained she thought appellant “was doing what I asked him to do.” There is no part of this agreement that is equivocal or ambiguous. Under the agreement, Olsen gave appellant her consent to be removed by him from a casino. The agreement does not raise an issue concerning appellant’s potential mistaken belief in the meaning of the agreement. The only testimony concerning the agreement came from Olsen and she testified appellant did what she asked him to do. Therefore, the agreement was evidence of consent. There was no evidence from the terms of the agreement indicating ambiguity or the potential for misunderstanding the nature of the victim’s consent.
Appellant has submitted no evidence that he mistakenly believed he could remove Olsen from the casino. Phrased another way, there were not conflicting accounts of a mistake of fact concerning appellant’s “belief” in consent as distinguished from his mere “assertion” of consent. (Rhoades, supra, 193 Cal.App.3d at p. 1369.) Through Olsen’s testimony and defense counsel’s closing argument, appellant maintained that Olsen, in fact, consented to his conduct. Defense counsel did not argue that appellant had a mistaken belief as to whether Olsen had consented to be removed from the casino. Counsel’s argument was confined to the defense contention that Olsen consented to appellant’s actions. Under such circumstances, appellant is not entitled to a Mayberry instruction. (People v. Dominguez (2006) 39 Cal.4th 1141, 1149 (Dominguez).) The jury in the instant action received an instruction concerning consent and, after evaluating Olsen’s testimony, clearly rejected appellant’s theory that Olsen had consented to being removed from the casino.
Where defense counsel only argues the mistaken belief theory in closing argument, the Mayberry instruction need not be given where no evidence supports the instruction. (Gonzalez, supra, 141 Cal.App.3d at pp. 792-793.) Here, there was not even the argument of defense counsel on this point.
Appellant’s Resort to Violence
Appellant argues on appeal that he could have had a mistaken belief concerning whether he could employ force, or whether he could employ as much force as he did, to remove Olsen from a casino. Appellant attempts to bootstrap Olsen’s testimony that there was no preexisting agreement concerning appellant’s use of violence to remove her from a casino into a potential mistake of fact concerning his conduct during the incident. The flaw in this argument is that appellant’s suggested use of violence violates the objective test in Mayberry which is based on reasonable conduct and acceptable public policy.
As noted above, the Mayberry defense has two components, one subjective and the other objective. Under the objective test, the appellant’s mistaken belief must be reasonable. (Williams, supra, 4 Cal.4th at pp. 360-361.) Regardless of how strongly a defendant subjectively believes a person has, for instance, consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction. (Williams, supra, 4 Cal.4th at pp. 360-361 ; Dominguez, supra, 39 Cal.4th at p. 1148.)
Even if appellant’s subjective belief was that Olsen had granted him permission to use violence to remove her from a casino, that belief was not objectively reasonable. Society cannot tolerate a serious breach of the peace by private agreement. Appellant did not simply wrap his arms around Olsen and pull her from the casino. He grabbed her by the hair and pulled her some distance from where he found her to the exit. Appellant forced Olsen to the ground and pulled out some of Olsen’s hair. The level of violence and force employed by appellant in removing Olsen from the casino was great.
A victim’s consent is not a defense to a charge of assault. (People v. Alfaro (1976) 61 Cal.App.3d 414, 429.) Except in the context of certain sporting activities such as football and boxing, consent is not a defense to assault or battery. Consent is not a defense to an assault resulting in great bodily injury. (People v. Samuels (1967) 250 Cal.App.2d 501, 513-514.) Thus, any mistaken belief appellant may have had concerning the use of violence to remove Olsen from a casino was unreasonable, unacceptable on public policy grounds, and therefore failed to meet the objective test set forth in Mayberry.
Conclusion
In conclusion, there was no evidence of equivocal conduct by the victim during the incident itself that would have warranted a Mayberry instruction. There was no testimony concerning appellant’s state of mind during the incident. Although there was evidence from the victim concerning a preexisting agreement that appellant could remove her from the casino, the existence of that agreement was based on consent. Nothing in the agreement was equivocal or could be interpreted as ambiguous. Either appellant had the prior consent of the victim to remove her from the casino, or, he did not. The jury was instructed on consent and necessarily rejected this defense on other properly given instructions. The trial court did not err in denying appellant’s request for an instruction on mistake of fact.
NO CONTACT ORDER
Appellant contends, and respondent concedes, that the trial court’s order that appellant not have contact with Olsen or her family must be reversed. We agree.
At sentencing, the court ordered appellant to stay away from Olsen and her family members, her residence, place of employment and her school. The court ordered appellant to have no contact with Olsen by phone, electronically, or through a third party.
Under section 136.2, a trial court has jurisdiction in criminal actions to issue protective orders for victims, witnesses, and their immediate family members. Here, however, there was no evidence adduced that Olsen or any member of her family desired the order. Furthermore, the court conducted no hearing on the matter. In People v. Stone (2004) 123 Cal.App.4th 153, 159 (Stone), the court found that the narrower scope of section 136.2 suggests the Legislature did not intend this section to authorize restraining orders beyond those germane to the proceedings before the criminal court. Stone noted that orders without time durations would usurp restraining orders obtainable under Code of Civil Procedure section 527.6. An order of three years duration was found to be reversible. (Id. at pp. 159-160.) The duration of the court’s order here is also indefinite.
Stone further found that the absence of evidence to support the order was equally fatal. The fact that the victims in that case had been assaulted by the defendant there was insufficient, by itself, to justify the orders. (Stone, supra, 123 Cal.App.4th at pp. 160-161.)
DISPOSITION
The trial court’s restraining order against appellant’s contact with Olsen and her family is reversed. The judgment is otherwise affirmed.
“The defendant is not guilty of [forcible false imprisonment] if [he] did not have the intent or mental state required to commit the crime because [he] reasonably did not know a fact or [reasonably and] mistakenly believed a fact.
“If the defendant’s conduct would have been lawful under the facts as [he] [reasonably] believed them to be, [he] did not commit [forcible false imprisonment].
“If you find that the defendant believed that ______<insert alleged mistaken facts> [and if you find that belief was reasonable], [he] did not have the specific intent or mental state required for [forcible false imprisonment].”
“The defendant is charged with false imprisonment by violence or menace.
“To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant intentionally restrained someone by violence or menace;
“AND
“2. The defendant made the other person stay or go somewhere against that person’s will.
“Violence means using physical force that is greater than the force reasonably necessary to restrain someone.
“Menace means a verbal or physical threat of harm. The threat of harm may be express or implied.
“An act is done against a person’s will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act.
“False imprisonment does not require that the person restrained be confined in jail or prison.”