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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  29094-8-III
                                                )
                             Respondent,        )
                                                )         Division Three 
         v.                                     )
                                                )
JASON PAUL SHEPARD,                             )
                                                )         UNPUBLISHED OPINION
                             Appellant.         )
                                                )

       Sweeney, J.  --  This appeal follows convictions for kidnapping and robbery.  The 

defendant approached his victim at a gas station and asked her for gas money; she agreed.  

He then ordered her into the passenger seat of her own car, drove from the gas station, 

demanded her bank card, and threatened to hurt her when she could not give him the 

number for her bank card.  He argues on appeal, as he did in the trial court, that the 

kidnapping was only "incidental" to the robbery and therefore should be dismissed for 

insufficient evidence.  We conclude that the kidnapping did not merge with the robbery.  

He also contends that the current sentencing judge abused his discretion by simply 

adopting the conclusions of an earlier sentencing judge that two convictions did not  

No. 29094-8-III
State v. Shepard

amount to the "same criminal conduct." There we conclude as a matter of law that the 

earlier convictions did not amount to the same criminal conduct.  We then affirm the 

convictions and the sentence.

                                            FACTS

       Brittany Fields pumped gas into her car at a Spokane gas station around 1:00 a.m. 

on May 6, 2009.  Jason Shepard got out of a car parked nearby and asked Ms. Fields for 

gas money.  Ms. Fields responded by putting $10 worth of gas in Mr. Shepard's car.  Mr. 

Shepard then told her to get in the passenger seat of her car, grabbed her by her arm, and 

pushed her into her car.  Mr. Shepard got into the driver's seat of Ms. Fields' car and 

drove away. He drove for one to two blocks and then demanded Ms. Fields' bank card

and cell phone. Ms. Fields complied. Mr. Shepard next demanded the personal 

identification number (PIN) to Ms. Fields' bank card. Ms. Fields said she did not know 

her PIN.  Mr. Shepard then threatened to hurt her. Ms. Fields testified that "[a]t that 

point I started to realize the severity of the situation and I started to cry." Report of 

Proceedings (RP) at 195. Mr. Shepard drove the car about 10 blocks then stopped and

said to a woman who had pulled alongside: "'I got her debit card and her cell phone, 

should I get anything else?'" The woman responded, "'I don't care, get what you want.'"

RP at 198.  Mr. Shepard got out of Ms. Fields' car and left with the other woman in her

car. 

       The State charged Mr. Shepard with 

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State v. Shepard

one count of kidnapping in the first degree, one count of second degree robbery, and one 

count of second degree theft.  A jury convicted him of all three charges.  Mr. Shepard 

moved to dismiss the kidnapping conviction for insufficient evidence.  The court denied 

his motion.  He appeals the denial of that motion.  

       Mr. Shepard also appeals his sentence.  The court deferred to an earlier sentencing 

court's conclusion that the two crimes did not amount to the same criminal conduct. 

These earlier convictions arose out of incidents that took place on October 20 and 21,

1998.  Police saw Mr. Shepard drive a stolen Nissan on October 20, pursued him but 

were unable to catch him. Police caught him, the following day, with the Nissan and 

other stolen items.  Mr. Shepard pleaded guilty to one count of first degree stolen 

property arising out of the October 20 incident and one count of second degree 

possession of stolen property arising out of the October 21 incident. The earlier 

sentencing court sentenced Mr. Shepard to concurrent jail terms on each possession of 

stolen property count but refused to conclude that the crimes were the same criminal 

conduct.  

       The court here deferred to that earlier ruling:

       [T]he [prior] Court found that there was not the same course of conduct.
       That to me is the finding. That's there so I'm not going to mess with that. 
       That's the finding of the Court.
              Now, with that, and I don't know how to go any deeper into that. 
       I'm just relying on those documents or [sic] those charges.  

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RP at 482-83.

                                        DISCUSSION

Kidnapping -- Incidental To Robbery

       Mr. Shepard contends that the kidnapping here was incidental to the robbery and 

therefore not supported by facts sufficient for a separate conviction for kidnapping. 

       The State must produce substantial evidence to support the elements of a crime.

State v. Werneth, 147 Wn. App. 549, 552, 197 P.3d 1195 (2008).  Whether the State has 

met that burden of production is a question of law that we will review de novo.  Id.  

       Second degree robbery is "unlawfully tak[ing] personal property from the person 

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

force, violence, or fear of injury to that person or his property or the person or property of 

anyone." Former RCW 9A.56.190 (1975).  Kidnapping in the first degree requires that 

the State prove the intentional abducting of another with intent:

              (b) To facilitate commission of any felony or flight thereafter; or
              (c) To inflict bodily injury on him; or
              (d) To inflict extreme mental distress on him or a third person.

Former RCW 9A.40.020(1) (1975). "Abduct" is "restrain[ing] a person by either (a) 

secreting or holding him in a place where he is not likely to be found, or (b) using or 

threatening to use deadly force." Former RCW 9A.40.010(2) (1975). And "restrain" is 

"restrict[ing] a person's movements without consent and without legal authority in a 

manner which interferes substantially with 

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State v. Shepard

his liberty."  Former RCW 9A.40.010(1) (1975). 
       Mr. Shepard relies on the analysis set out in State v. Korum1 and State v. Elmore2

(a case that relied on Korum) for his contention that the kidnapping here was incidental to 

the robbery and there was not enough of a showing by the State, independent of the 

robbery, to support the conviction for kidnapping.  Br. of Appellant at 5-6.  We reject the 

contention for at least three reasons.  

       First, like any case law precedent, Korum has to be put in its proper factual 

context.  In Korum, the court was charged with deciding whether a prosecutor 

vindictively overcharged a defendant in retribution for successfully moving to set aside a 

guilty plea.  120 Wn. App. at 689-90.  The court then begins its analysis with a discussion 

of the prosecutorial standards set out in RCW 9.94A.411 including that: "'[c]rimes which 

do not merge as a matter of law, but which arise from the same course of conduct, do not 

all have to be charged.'"  Korum 120 Wn. App. at 702 (quoting former RCW 

9.94A.440(2) (1996), recodified as RCW 9.94A.411(2)).  The court cited to federal 

authority that prohibits, or at least discourages, "'without explanation, increas[ing] the 

number of or severity of those charges in circumstances which suggest that the increase is 

       1 State v. Korum, 120 Wn. App. 686, 703, 86 P.3d 166 (2004), aff'd in part, rev'd 
in part on other grounds, 157 Wn.2d 614, 141 P.3d 13 (2006).
       2 State v. Elmore, 154 Wn. App. 885, 901, 228 P.3d 760, review denied, 169 
Wn.2d 1018 (2010).

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No. 29094-8-III
State v. Shepard

retaliation for the defendant's assertion of statutory or constitutional rights.'" Korum,

120 Wn. App. at 702 (quoting Hardwick v. Doolittle, 558 F.2d 292, 301 (5th Cir. 1977)).  
And the court in Korum relies on the dissent in State v. Vladovic,3 not the majority 

opinion, to discuss the court's concern over the pyramiding of charges by a prosecutor.  

Korum, 120 Wn. App. at 704.  Ultimately, the court in Korum concluded that "the State's 

stacking of multiple kidnapping charges following Korum's plea withdrawal was not 

consistent with the legislature's directives in former RCW 9.94A.440(2)."  120 Wn. App.

at 703.  We are not concerned here with prosecutorial vindictiveness and the State 

overcharging Mr. Shepard.  

       And that brings us to our second point which is that the controlling Supreme Court 

authority here is Vladovic.  And that case resolves these questions on the basis of merger 

principles.  Vladovic, 99 Wn.2d at 418-22. In Vladovic the court holds that the 

controlling principles here are those of the merger doctrine, with its attendant inquiry into 

legislative intent, not whether one crime was "incidental" to another: 

              Our only apparent divergence from the above analysis [merger 
       analysis] occurred in State v. Allen, 94 Wn.2d 860, 621 P.2d 143 (1980), 
       which petitioner relies upon. In Allen we determined that, under the facts 
       of that case, the kidnapping was separate and distinct from the robbery and 
       thus the case fell within an exception to the merger doctrine set forth in 
       Johnson I [State v. Johnson, 92 Wn.2d 671, 600 P.2d 1249 (1979)].  There 
       is dictum in Allen to the effect that had the kidnapping merely been 
       incidental to the robbery, the former offense would have "merge[d] into the 
       robbery as a matter of law."  Allen, at 864.  That statement is not in accord 

       3 99 Wn.2d 413, 430, 662 P.2d 853 (1983) (Utter, J., dissenting).

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No. 29094-8-III
State v. Shepard

       with either Johnson I or II [State v. Johnson, 96 Wn.2d 926, 639 P.2d 1332 
       (1982)] and we do not now adhere to it. We reaffirm our holdings 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). Pursuant to this rule, 
       kidnapping does not merge into first degree robbery.

Id. at 420-21. 

       The legislature has the exclusive power to define crimes and punishments.  State v. 

Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995).  The object here is to identify that 

legislative intent and pass on whether the legislature has exceeded its authority by 

punishing a defendant twice for the same offense.  Id.  We apply the merger doctrine to 

determine whether the legislature intended to impose multiple punishments for a single 

act that violates several statutory provisions.  Vladovic, 99 Wn.2d at 419 n.2. So, if the 

State must prove the elements of one crime (here kidnapping) in order to prove that the 

defendant committed another (here robbery) then the kidnapping is said to merge with the 

robbery.  Id. at 420-21.

       The crime of robbery is the taking of personal property from the person of another 

or in her presence and against her will with either the use or threatened use of force or 

violence.  Former RCW 9A.56.190.  Here, the State did not have to prove that Mr. 

Shepard kidnapped Ms. Fields to prove the robbery.  He was physically much larger and 

ultimately threatened to hurt her if she did 

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No. 29094-8-III
State v. Shepard

not produce the PIN necessary to take money from her account.  Seizing her and her car 

and driving from the gas station may have added to the intimidation but it was 

nonetheless not a necessary element of first degree robbery.  See former RCW 9A.56.190.  

We conclude that there is no legislative intent to punish only the robbery and the crimes 

do not therefore merge.  Vladovic, 99 Wn.2d at 420.  

       Our Supreme Court has applied a similar analysis in other cases.  In re Pers. 

Restraint of Fletcher, 113 Wn.2d 42, 53, 776 P.2d 114 (1989) ("the person who 

intentionally abducts another need do so only with the intent to carry out one of the 

incidents enumerated in RCW 9A.40.020(1)(a) through (e) inclusive; not that the 

perpetrator actually bring about or complete one of those qualifying factors listed in the 

statute"). The wording of the kidnapping statute shows that the legislature did not intend 

for an underlying crime to be an element of kidnapping. See id. So, the merger doctrine 

does not apply to kidnapping.  Id.; State v. Louis, 155 Wn.2d 563, 570-71, 120 P.3d 936 

(2005) (affirming robbery and kidnapping convictions of Louis, who robbed jewelry store 

owners at gun point and left them bound inside the store's bathroom). Here there is no 

suggestion by counsel or in the statutory schemes of kidnapping and robbery that the 

legislature intended that one "merge" with the other. Former RCW 9A.40.020; former 

RCW 9A.56.190. 

       Finally, on this point, the considerations necessary to pass on whether one crime is 

"incidental" to another certainly seem 

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No. 29094-8-III
State v. Shepard

essentially factual.  Indeed, it has been described as a "fact specific" determination.  

Elmore 154 Wn. App. at 901 ("Thus, whether the kidnapping is incidental to the 

commission of other crimes is a fact-specific determination.").  Nonetheless, State v. 

Green clearly identifies this as a sufficiency of the evidence question and therefore a 

question of law. 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980).  And the facts here -- that 

Mr. Shepard moved the victim 10 blocks, restrained the victim for 8 to 10 minutes, and 

added to the victim's injuries by restraining and threatening her even after taking her 

belongings -- militate in favor of our conclusion that the kidnapping should not be merged 

with the robbery here.  

Same Criminal Conduct

       Mr. Shepard next contends that the sentencing court mistakenly concluded that 

earlier convictions did not constitute the same criminal conduct for sentencing purposes.  

       Whether multiple prior convictions amount to the same criminal conduct is now 

controlled by statute:  "if the court enters a finding that some or all of the current offenses 

encompass the same criminal conduct then those current offenses shall be counted as one 

crime. . . . 'Same criminal conduct,' as used in this subsection, means two or more crimes 

that require the same criminal intent, are committed at the same time and place, and 

involve the same victim." RCW 9.94A.589(1)(a).

       We determine the meaning of a statute based on the clear language of that statute 

and decide that meaning as a matter of law. 

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No. 29094-8-III
State v. Shepard

State v. Theilken, 102 Wn.2d 271, 275, 684 P.2d 709 (1984); State v. Ayala, 108 Wn. 

App. 480, 484, 31 P.3d 58 (2001).  And here there does not appear to be any dispute over 

the facts that resulted in Mr. Shepard's earlier convictions.  And so for those reasons also 

our review is de novo.  Ayala, 108 Wn. App. at 484. 

       Here the earlier felony judgment and sentence and reports from the Spokane Police 

Department and Washington State Patrol make clear that the earlier convictions do not 

amount to the same criminal conduct.  CP at 232, 250-53.  One count of possession of 

stolen property arose from possession of the Nissan on October 20 and that the other 

count of possession of stolen property arose from possessing some combination of stolen 

property on October 21, 1998.  The conduct then is by statutory definition not the same 

criminal conduct.  See RCW 9.94A.589 (stating that two or more crimes are the same 

criminal conduct if "committed at the same time and place").

Statement of Additional Grounds

       Mr. Shepard argues pro se that there is insufficient evidence to support the

intentional abduction element of kidnapping.  This element requires that the victim was 

restrained by either, "(a) secreting or holding him in a place where he is not likely to be 

found, or (b) using or threatening to use deadly force."  Former RCW 9A.40.010(2).  

Specifically, Mr. Shepard argues he did not secret or hold Ms. Fields in a place where she 

would not likely be found because she was always in a "populated and public area."  

However, the statute does not require that a 

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No. 29094-8-III
State v. Shepard

person be held in an unpopulated or private area.  Additionally, in State v. Harris, the 

court held that there was sufficient evidence to sustain a kidnapping conviction when the 

defendant drove the victim in the opposite direction from her home, held her in a car at 

the end of a public street, and later released her in a residential area.  36 Wn. App. 746,

748, 677 P.2d 202 (1984).  The manner in which Ms. Fields was held resembles the 

manner in which the victim in Harris was held.  Both women were held on public streets 

and eventually released in a residential area.  Although Ms. Fields was in her own car and 

in a public area, she would not have been in the area but for Mr. Shepard taking her there.  

The jury could then easily infer that Ms. Fields was in a place where she was not likely to 

be found.  Thus, there was sufficient evidence to support the intentional abduction 

element of kidnapping.  

       We affirm the convictions and sentence.

       A majority of the panel has determined that this opinion will not be printed in the 

Washington Appellate Reports but it will be filed for public record pursuant to 

RCW 2.06.040.

                                                    _______________________________
WE CONCUR:                                          Sweeney, J.

________________________________

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No. 29094-8-III
State v. Shepard

Korsmo, A.C.J.

________________________________
Brown, J.

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