Opinion
No. 54601-5-I
Filed: May 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 04-1-00986-8. Judgment or order under review. Date filed: 07/01/2004. Judge signing: Hon. Richard J. Thorpe.
Counsel for Appellant/Cross-Respondent, Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric J. Nielsen, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent/Cross-Appellant, Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave, Everett, WA 98201-4061.
There is sufficient evidence beyond a reasonable doubt of unlawful imprisonment, where Powell substantially interfered with his girlfriend's liberty by tying her up with an electrical cord and placing a sock in her mouth, even though she was able to untie the cord after two minutes. Powell does not establish his trial counsel was ineffective for making the tactical decision not to seek a self-defense instruction. We affirm.
FACTS
Powell lived with his girlfriend Shabnam Azadi for almost two years. An argument between them escalated when Powell announced he was leaving and called the furniture rental company to come pick up the furniture in their apartment. Powell got in Azadi's face. Azadi grabbed him by his collar. Powell threw Azadi down on the couch, but she continued to hold onto his collar until Powell bit her finger. Powell wouldn't let Azadi leave the apartment. He tied her up with an electrical cord, put a sock in her mouth because the neighbors could hear her shouting.
Azadi untied herself and called 911, but Powell unplugged the telephone during the call. When an officer arrived to inquire about the interrupted phone call, he heard a man and woman's voices inside the apartment. Azadi came to the door, nodded affirmatively when the officer asked if she had been assaulted and then whispered to the officer that `[h]e said he would kill me if I said anything to the police.' Azadi stepped outside and began crying. Powell left from the back of the apartment.
Azadi told the police officer that Powell had tied her up with an electrical cord, put a sock into her mouth and would not let her leave the apartment. She told the officer that Powell caused a bite mark on her finger, a bruise on her shoulder and scratches on her back.
Two days later, Azadi contacted the police and recanted. In a new statement and in her testimony at trial, she stated that she began pushing Powell and told him she would not let him leave the apartment. She told Powell that the only way he could stop her would be to tie her up. She took an electrical cord out of a drawer, handed it to Powell and told him he could tie her up and she started laughing. He dropped the cord on the floor. She yelled at him that she was going to call the police. She dialed 911 and then voluntarily hung up the phone, `just trying to scare him so he doesn't go.' Then the police arrived at her apartment. She testified that she lied to the police, her discolored skin and marks were old injuries not caused by Powell. Azadi later spoke with Powell and told him she was afraid that their child may be taken away based upon her lying to the police.
When Powell was later arrested, he acknowledged that he had tied up Azadi briefly using an electrical cord because she continued to interfere with his efforts to leave the apartment. He put a sock in her mouth because she was yelling and the neighbors could easily hear. He told the police that Azadi struggled when he used the electrical cord to tie her hands behind her. At one point in his statement to police he indicated that she was tied up `for maybe two seconds.' Later in his statement, Powell indicated that she was `only in it for like two minutes and then she stood up, and, you know, she got up and she pulled her hands out and she took it off.' He denied injuring her. He acknowledged that he was 6'2'' and 198 pounds and that she was 5'6' or 5'7' and petite.
DISCUSSION
Powell challenges the sufficiency of the evidence of unlawful imprisonment. In a criminal case, the test for determining the sufficiency of the evidence is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Any challenge to the sufficiency of the evidence admits all inferences that reasonably can be drawn therefrom.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980).
State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
A person is guilty of unlawful imprisonment if `he knowingly restrains another person.' RCW 9A.40.040. `Restrain' means:
to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with his liberty. Restraint is `without consent' if it is accomplished by (a) physical force, intimidation, or deception, or (b) any means including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and if the parent, guardian, or other person or institution having lawful control or custody of him has not acquiesced.
RCW 9A.40.010(1). See also State v. Thomas, 35 Wn. App. 598, 603, 668 P.2d 1294 (1983) (`essence of unlawful imprisonment is restraint') (emphasis omitted).
`Substantial' in this context is a real or material interference with the liberty of another as contrasted with a petty annoyance, a slight inconvenience, or an imaginary conflict. The presence of a means of escape may help to defeat a prosecution for unlawful imprisonment unless `the known means of escape . . . present[s] a danger or more than a mere inconvenience.'
State v. Robinson, 20 Wn. App. 882, 884, 582 P.2d 580 (1978), aff'd, 92 Wn.2d 357, 597 P.2d 892 (1979).
State v. Kinchen, 92 Wn. App. 442, 452 n. 16, 963 P.2d 928 (1998).
The evidence viewed in a light most favorable to the State includes Azadi's initial statement to the police indicated that Powell tied her up to keep her from leaving the apartment. Powell acknowledged that he tied her up to keep her from interfering with his efforts to leave, that she struggled as he tied her hands behind her back with an electrical cord and that he stuffed a sock in her mouth to keep her from being heard by neighbors. He also acknowledged that she was tied up for about two minutes.
The duration of restraint is not critical to substantial interference. In State v. Robinson, 92 Wn.2d 357, 360, 597 P.2d 892 (1979) the court found sufficient evidence of restraint where the defendant jumped out of his car, chased the 15-year-old girl, grabbed her arm, and began dragging her to his car, telling her, `Do what I say or else' and the girl promptly escaped by kicking defendant and stomping on his foot. Similarly, Azadi's ability to untie herself within two minutes does not establish that she was not restrained. Though brief in time, the evidence is sufficient beyond a reasonable doubt to establish that Powell used physical force to substantially interfere with Azadi's liberty by tying her hands behind her back and stuffing a sock into her mouth.
Powell also contends his trial counsel was ineffective for failing to request a self-defense instruction in light of Azadi's testimony that she pushed and grabbed Powell. A strong presumption of competent representation generally applies when reviewing a claim of ineffective assistance of counsel. To establish ineffective assistance, a defendant bears the burden of proving that trial counsel's representation was deficient and that the deficiency prejudiced the defense. `Deficient performance is not shown by matters that go to trial strategy or tactics.' `To raise self-defense before a jury, a defendant bears the initial burden of producing some evidence that his or her actions occurred in circumstances amounting to self-defense, i.e., the statutory elements of reasonable apprehension of great bodily harm and imminent danger.' Because of the lack of any evidence that the 6'2' 198 pound Powell was reasonably in fear of great bodily harm from the petite Azadi, a self-defense instruction was highly unlikely and it was a reasonable tactical decision not to request a self-defense instruction. Powell does not establish deficient performance.
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996).
State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999) (citing State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495 (1993)).
We affirm.
BAKER, ELLINGTON and BECKER, JJ.