*1 216 as to consistently interpreted CrR 3.3 so

This court has pur- which ambiguities supports a manner resolve prompt for the defend- pose providing the rule trial ex McDonald v. State rel. prosecution ant once is initiated. Court, 35, County District P.2d

Whatcom 92 Wn.2d 593 (1972) Campaign v. Dan J. Evans (1979); State 546 v. Comm., (1976); State McIn- 503, 546 P.2d 75 86 Wn.2d Alexus, v. (1979); State tyre, 92 Wn.2d 620, 600 P.2d 1009 Peterson, v. (1979); State P.2d 1171 90 91 Wn.2d 588 Sulgrove, (1978); Wn. Wn.2d 585 P.2d 66 McNeil, Wn. State v. (1978); App. App. Striker, supra. See State v. 582 P.2d 524 The time proper. The trial court's dismissal was days the defend- timely trial in this after expired case 3.3(b)(1)(b). not be could arrest. CrR Timeliness ant's in district court rather filing revived thereafter the cause court. superior than

Affirmed.

Utter, C.J., Rosellini, Stafford, Wright, Brach- JJ., Hicks, Williams, concur. Dolliver, tenbach, November 1980. Reconsideration denied 28, 1980.] August En 44705. Banc. [No. Respondent, Washington, Michael The State Green, Appellant. Charles *2 2X8 *3 Ford, Smith, Ford, Withey, Theiler

Timothy Kaplan, K. Jr., Strait, Sowa, Anthony Savage, appel- for & John and lant. Prosecuting Attorney, J. T.

Christopher Bayley, and Hunt, Deputy, for Robin respondent. court this petitions Charles Green J. Michael Stafford, Green, v. in 91 of our decision

for reconsideration (1979) (Green I) major on three Wn.2d (1) by appellant made ruling our statement issues: in violation interrogation of custodial product was not Arizona, 436, 16 L. Ed. 2d S. of Miranda U.S. (2) (1966); ruling that 1602, 10 our A.L.R.3d 974 Ct. RCW under unfettered discretion possess State did not 9A.32.045(7)1 .030(l)(c)(2) (5) RCW vary- and and seek ing degrees punishment of persons different who com- mit identical violating equal protection crimes thus of the law; (3) disposition our of by the issues raised an alle- gation that appellant committed in aggravated murder first in degree of degree kidnapping furtherance first (kidnapping) or first degree rape (rape). For the reasons set forth Green I we disposition adhere to our original Miranda equal protection depart issues. We from I, however, reconsidering kidnap- after the issue of ping as degree an element of aggravated first murder as defined Initiative 2. considering After the evi- § State, dence most favorable to we conclude there is substantial to support kidnap- a determination of ping. This conclusion compelled also the recent deci- of Jackson Court, sion the United Supreme States Virginia, U.S. 61 L. Ed. 2d 99 S. Ct. 2781 (1979). Moreover, the form in nature the verdict case this makes it impossible for know if jury us to unani- mous determining aggravated first mur- degree or der was committed kidnapping furtherance Therefore, rape. the charge aggravated first mur- degree remanded, der must be based as it remaining ele- ment of degree rape first attempted degree or rape. first 9A.32.045(7),

Pursuant RCW charge aggravated murder degree by proving the first must be established vic- beyond a reasonable doubt caused the appellant rape tim's death in the or in course of the furtherance (RCW 9A.40.020). 9A.44.040), (RCW While kidnapping rape and aggravated are elements crime degree, major the first each is a and distinct separate beyond having specific proved be elements which also must Thus, is whether question a reasonable doubt. the initial *4 crimes, them, of have separate those distinct or either and 1, Sess., 9, 9A.32.045, § 2d Ex. ch. 1RCW Initiative 1 Laws of § Sess., 1977,1st by opinion, Ex. ch. referred to in have revised Laws of this been 206, 4, p. 776. § 220 test under either the substantial evidence

been established Virginia, supra. or of v. the reasonable doubt test Jackson to dealing inadequacy proof with the claimed held, I page Green kidnapping, at establish elements sufficiency of is limited to a 442: evidence "[r]eview produced State substan- determination of whether the has from which tending tial to circumstances evidence establish (First reasonably proved." could infer the fact to be jury ours.) Randecker, Then, v. citing State italics after (1971), I deter- Wn.2d Green held: "[i]n exists, mining necessary quantum whether court to unnecessary [reviewing] it be satisfied for necessary for beyond only a reasonable doubt. It is guilt sub- to satisfied that there is reviewing be court] [the partic- support stantial evidence the State's case Green, supra v. 442-43. ular element in question." (Italics ours.) reviewed the evidence Thereafter jury from which the concluded substantial evidence existed in appellant killed victim the course could have inferred in which of or a conclusion with kidnapping, furtherance disagree now after more careful reflection. we is, however, There an even more salient reason Shortly pub I. from our view in Green after the departing I, Supreme of Green Court held lication United States Virginia, proper supra, Jackson that on review the justify there was sufficient evidence to test guilt beyond trier find a reasonable rational of fact 358, 25 L. Winship doubt.2 "After re Winship, U.S. [In Virginia, Ct. Jackson 443 U.S. L. Ed. 2d 99 S. 2The fact (1979) corpus proceeding with district court is concerned a habeas federal impact Jackson was concerned with does undermine its the instant case. peti petitioner degree His motions and of first a state court. convicted ground system on the of insufficient tions the state set aside his conviction step court to seek in federal district evidence were denied. His next relief corpus. only the one at that case and means of habeas difference between here, remedy appellant seeking his court and is still final the state hand is proper remedy Jackson. If opportunity apply declared have the we still so, however, in Jack length step do will be discussed at we fail to the next District, Appellate Appeals, son. we did in Second held as The California Court

221 368, Ed. Ct. (1970)] inquiry 2d 90 S. 1068 the critical sufficiency review of the of the to crimi support evidence a nal conviction simply must be not to whether the determine jury properly instructed, but to determine whether the a finding guilt record reasonably evidence could support beyond a reasonable doubt." v. Virginia, supra Jackson at (Italics ours.) 318. inquiry require This does not the reviewing court determine whether believes the evi dence beyond at trial established a guilt reasonable doubt. whether, "Instead the question viewing relevant is after in prosecution, any light most favorable to the rational trier could have found the ele essential of fact beyond a doubt." reasonable Jackson ments crime Virginia, ours.) supra (Italics at 319. criterion The impinges upon a jury's only discretion to the extent neces sary to protect the constitutional standard of reasonable As pointed Jackson doubt. out page a lesser standard would fail "to supply pre a workable or a even dictable standard for determining process due whether the of Winship command has been honored." Accordingly, appropriate determining test sufficiency of the applied evidence of that kidnapping i.e., whether, Green I, after the evidence most viewing State, favorable there is to sup- substantial evidence port Jackson Vir- issue, The kidnapping. as framed ginia, supra, whether, viewing after the evidence most any rational State, trier favorable could have of fact I, Green reviewing appeal, reviewing that a criminal conviction on court need only support evidence determine whether contains substantial the record finding majority, acting of the trier of The fact. dissent made it clear as we did I, Green reviewing require guilt did not mandate that court be estab M., beyond 887, 149 doubt. In App. lished re Leonard Cal. reasonable 85 3d Cal. (1978). Rptr. Supreme judgment The United States Court vacated the Virginia, supra. California, light of Jackson v. Leonard v. remanded the case in (1979). 443 U.S. 61 L. Ed. On 2d 99 S. Ct. 3105 remand the California Dist., here, Jackson v. Appeals, App. acknowledged, Court of 2d do as we Virginia, record, supra, required whether, it to a rational determine on the whole M., guilt beyond re Leonard trier of could fact have found a reasonable doubt. _Cal. (1979). 3d_, Moore v. App. Rptr. In a similar vein see Cal. Duckworth, L. U.S. Ed. 2d 99 S. Ct. 3088 beyond rea- found the elements essential sonable doubt. Green "substantial evidence" rule review cannot equated doubt" rule. The

be with Jackson's "reasonable precludes employed Green I clear of the rule statement holding our "substantial evidence" rule review of review are same and the "reasonable doubt" rule differently following Ran- albeit stated. Numerous cases upon including decker, I, have reiterated and relied *6 despite Nevertheless, clear dif- the obvious difference. the either we hold is insufficient meet ference the evidence rule of review. pertaining to the order to facts determine satisfy the substantial evidence test either necessary rigorous test, Jackson to review the

the more it is surrounding must facts the victim's death. The examination subjective reactions, of be made a manner as devoid argument possible. or comment as Kelly

Shortly p.m. September 28, 1976, before 1/2-year-old girl, younger Emminger, child for took a an 8 They Capital Hill headed a walk the area Seattle. alley adjacent apartment house where both down to the an approximately p.m., both within At witnesses and lived. apartment coming from the screams without heard alley. disregarded as the noise At were first sounds playing. scream, Within 15 seconds the first children Barry apartment, Miners, however, looked resident balcony story people saw two almost from his second and They directly him. were huddled on the sidewalk below alley. recognized Kelly, bordering the other He one shoulder-length hair. As with brown was an adult male Kelly kicked, her from behind and the man lifted screamed place her mouth an his hand over and was observed apparent attempt Kelly was her. At to silence time fully clothed. carry Kelly short distance

Mr. the man Miners watched they disappeared right, along sidewalk, before his apartment. corner back of The toward the around they passed within from screams ceased moments after overlooking Mr. window view. Miners went to a the side- Kelly walk toward which the man but and had moved saw nothing balcony and heard He further. returned to the and directly pair below, huddled, where the had he saw a lying pools adjoining butcher knife one of two of blood. apartment Mr. Miners left his down ran the back landing stairs from As the second floor. he reached the stair apartment's loading area,3 above the exterior he observed carpet some blood on him. below saw man He also Kelly. holding They stairs, near the bottom were away, loading about 8 feet near the entrance to exterior Kelly quiet very pale. Although area. was was she clearly unconscious, Mr. Miners was not sure whether she clothing, part body dead. was Her from the middle her away. ripped clothing ankles, her had been man's covered with blood. help

Mr. Miners asked the man whether was needed and replied "yes, pretty he she's been hurt Call bad. an ambu- departed gone lance." Mr. Miners to summon aid and was Upon about minute. his return he found the had man Kelly building. apartment moved to the lawn back *7 point At that Miners felt she was He sure dead. later iden- appellant tified the man Green. setting foregoing the scene for we note the events also began ground- incident on

the the of the sidewalk front apartment occupied by par- level Herman Tower and his Kelly ents. screamed and as Herman out looked away, Kelly the window Green, saw he not more than feet lift off her carry kicking screaming and feet her and toward the corner apartment building. screaming of the She ceased as she and disappeared Green from view around the As corner. apartment's loading 3The no exterior area an alcove exterior door with exit, door, apartment's opens is visible from the outside. The first floor rear fire loading upper into one end of the exterior the from floors area and back stairs loading All terminate at one side of the from the outside. area. are visible apartment, pools of he saw the two Herman exited his knife on the near his door. blood and the butcher sidewalk span, age Thorkelson, 8, was Within the same time Tania backyard grass-covered apartment. was in the of the She hung playing swing on located a tire from a tree near loading apartment's found exterior where Miners later area Kelly. screams, from the ran Green and Tania heard some peeked swing apartment building, to the corner Kelly struggling with Green around the corner and saw Kelly up. pick Apparently She saw the sidewalk. also Green alley. garages Tania then ran some across lengthy, foregoing of events is While the recitation only elapsed from be 2 to 3 minutes must understood Kelly time the time Miners found of the first scream to loading It should also the exterior area. Green's arms prosecuting I court and the be noted that attorney emphasis placed victim on the that the some fact point from of initial been moved a number of feet had report pro- Careful review the exhibits and encounter. ceedings reveals, however, extent of the movement only a short distance.4 To Prove Essential Elements

Failure of Evidence Degree Kidnapping Under of First Virginia Jackson v. specific above, element indicated

As degree. aggravated is, however, It in the first having specific separate statutory ele distinct crime beyond a reason of which must be established ments each Unchallenged No. 9 defines the instruction able doubt. statutory kidnapping as follows: essential elements person kidnapping in the first A commits crime intentionally person degree he abducts another when clear, prose was moved is 4While actual number of feet victim "20, 30, maybe . . cuting attorney from . [the feet where characterized it as testimony favor originally and exhibits most her." From the accosted assailant] *8 State, of 60 feet. it would have been in excess 50 to able to not any felony with facilitate commission of or intent flight thereafter. person by "Abduct" means to restrain a either (a) secreting holding place or she her a where is not likely found, to be or (b) using threatening deadly or to use force. person's "Restraint" means to a movement restrict legal authority without which consent and in manner without substantially liberty. with her interferes accomplished by is Restraint "without consent" if it is (a) physical deception, force, intimidation, or or (b) any acquiescence including victim, means if years a child she is less than sixteen old when the parent guardian acqui- other lawful has esced.

(Italics ours.) 9A.40.010(2) RCW and .020. foregoing,

From the it clear is is "abduction" a critical proof kidnapping. element in the of There are three distinct upon may rely bases which the State "abduc- establish (1) necessarily tion", which each of involves "restraint": by secreting place restraint means the victim a where (2) likely by he or found; she is not to be restraint means of (3) deadly by a threat to force; use restraint means of deadly killing other than the The State would force itself. supplied by killing fourth, i.e., add a restraint itself. fully Each of the four bases is examined more below. considering by any

In four means important wholly set forth separate above to note that each 9A.40.010(1), and distinct from the others. RCW (2)(a), (b); requires RCW restraint 9A.40.020. While each ultimately may charge support and at least the first three kidnapping, specific comprising means restraint interchangeable specific one are not with means required any establish the others. Each must be inde pendently proved upon stand combination none can fill the others to a critical void. secreting

A. Restraint means the victim. determining there is evidence of sufficient secreting restraint means of the victim under either the *9 setting test, of the or the Jackson evidence substantial surroundings physical must be examined events and the carefully. victim was asserts the area where the State loading apartment's area, had i.e., "secreted", exterior the play area doors, from the children's was visible no outside away, only swing and could feet located about 30 and a tire only apartment of another rear windows be viewed from the loading short, area exterior the 40 feet distant. about Additionally, plainly from the outside. visible opened apartment's door, into exit, or fire floor rear first only loading from feet a few area one end of the exterior victim. This and the observed Green Mr. Miners where public Further, provided to the area. access door additional place found was near victim were and the where Green stairway of the to all which led of back the bottom by stairway upstairs apartments. in common was used This Finally, apartments. occupants visitors to the of and elapsed only time from the best, 2 to minutes a total Miners reached time Mr. to the victim first screamed actually Kelly loading in Green's saw area and the exterior arms. unusually

Considering mini- involved, the short time (estimated by variously, victim was moved mal distance the feet), attorney, prosecuting loca- as from 20 to 50 visibility participants found, the clear when tion of the total lack well as the from the outside as location open public areas, any from of actual isolation evidence means of restraint no there is secreting substantial likely place was not where she victim a test, trier Further, no rational Jackson under the be found. beyond doubt, that a reasonable have found of fact could secreting her means of restrained victim had been likely place Under either to be not where she was found. pub- hardly a more have chosen could it is clear Green test place some homicide victim or commit the his lic to accost to minutes later. appellant although moved

Moreover, lifted and loading area, apartment's it is clear exterior victim the actually integral these events were an not inde- part pendent underlying of the homicide. While movement the mere incidental occurred, the victim restraint of a victim which might during movement occur the course not, alone, standing of a are kid- homicide indicia of true Johnson, See State v. 671, 676, napping. 92 Wn.2d P.2d 1249

Although we characterize the movement and restraint incidental, this case as we not mean suggest do every under conceivable set of facts a of 20 to 50 movement a stairwell would be incidental. That being feet or found incidental which constitutes solely movement mat- measuring ter of féet and inches. It is a determination to be case, made under the facts of in light totality each *10 surrounding of circumstances. This characterization is as much a consideration of relation between the restraint and the homicide as it is a precise measure of the distance or place moved held. It an involves evaluation of the nature of the restraint which distance but is factor one to be considered. by

As stated v. Michigan Court of People Appeals Adams, 222, (1973) 236, 389 Mich. N.W.2d 415 referring to a case of assault:

"We have concluded that under the kidnapping statute of movement the victim aspor- does not constitute an tation significance independent unless has of the And, assault. ronment where unless the victim is removed from the envi- found,

he consequences of the movement itself from to the victim not independently are significant the assault —the movement not does manifest ishment the commission a separate of crime —and pun-

for injury upon to the victim must be founded crimes other than kidnapping." New York has taken a of of merging similar view technical "kidnapping" merely that "kidnapping" when v. incidental to the of People commission another crime. Cassidy, 870, 40 N.Y.2d 358 N.E.2d 390 N.Y.S.2d 45 v. (1976); People Levy, 15 N.Y.2d 159, 164, 204 N.E.2d denied, cert. 256 N.Y.S.2d 381 U.S. 14 L. 2d Ed. Johnson, See also State Ct. 1770 S. supra. secreting kidnapping by means of or hold-

We hold that likely ing place was not to be the victim in a where she by either substantial evi- found has been established required by by proof of Jackson the standard dence supra. Virginia, deadly by a threat to use

B. Restraint means of force. no evidence that A of the record discloses careful review by deadly required employed force as threat to use 9A.40.010(2)(b). Thus, we No. RCW con- instruction 9 and of that means and there is no substantial evidence clude of could have found conclude no rational trier fact also beyond victim been doubt had a reasonable by required manner, Jackson. restrained by deadly other than the means Restraint C. force killing itself. no of the discloses evidence

Our review by deadly stabbing force other than restraint Green lifted the victim victim. While the record indicates loading conduct, area, such and carried her to exterior deadly more, force. without does not amount the use compelled is no evidence We to conclude there are deadly by other than that force restraint means killing. employed Thus the ultimate employed deadly in the other than means force killing substantial has not been established ultimate *11 by by required proof Jackson. or the standard killing by supplied D. Restraint itself. and RCW 9A.40- No. 9

Pursuant to instruction (b) .010(2) may kidnapping if the victim the State establish by deadly in it is clear While is restrained the use force. (i.e., killing deadly employed force case that this itself), killing by ultimate an we conclude that "restraint" kidnapping. itself, RCW not, in and establish does 9A.40.010(2)(b) deadly employment contemplates force of a stops that short of actual homicide. When the State estab- killing may or proved lishes a it have some a homicide crime, but it has not kidnapping. other established In the broadest sense the infliction of a fatal wound is form of obviously the ultimate "restraint" because person's movement ... in a which manner "restrict[s] substantially person's] interferes with RCW liberty." [the 9A.40.010(1). If logic applied such kidnap- to the law of every however, ping, killing intentional would also be a kidnapping killing because the itself would supply req- (i.e., killing uisite "restraint" being the ultimate form of "restraint"). Moreover, every killing intentional would automatically in become murder the first degree under 9A.32.030(c)(5), RCW provides which causing one death of of any another the course is auto- kidnapping matically guilty of murder in the degree. impor- first Most tantly, the intentional killing, thusly converted into first murder, automatically degree would turn be converted aggravated into degree murder the first under RCW 9A.32.045(7) because it was committed the course of a kidnapping.

Clearly identify Initiative to was intended those crimes which particularly outrageous, are to enhance the degrees of culpability and to elevate the of such status indicate, however, crimes. There nothing peo- ple employ of this state intended statute kidnapping in such a way convoluted as to eliminate all distinction among killings. contrary, intentional On the the initiative carefully set specific out seven in which circumstances first degree punish- murder could be elevated into a crime not, by inference, able death. It specifically by did either purpose automatically every indicate its was to convert intentional into first killing aggravated Thus, degree punishable compelled death. we are killing conclude evidence of the itself does not establish necessary "restraint" prove based deadly restraint the use of force under RCW 9A.40- .010(2) (b). *12 foregoing analysis

It is from that the State evident the kidnapping has failed to establish the elements of either beyond adopted in Green or the substantial evidence test Accordingly, required as doubt Jackson. a reasonable upon charge grounds of of critical which one the two degree aggravated If based fails. murder the first was degree charge aggravated stand, of the first is to murder solely charge degree rape. be of first it must based on the

II on the Failure of the Trial Court To Instruct Subject of a Unanimous Verdict guilty jury trial, find At instructed could degree aggravated if murder in the first convinced of beyond doubt that: a reasonable Kelly Emminger in of Ann defendant caused the death degree rape of in the

the or of or furtherance first course degree[.] kidnapping in the first subsequently jury The returned a unani- Instruction No. 5. general guilty. form to of failed mous verdict verdict separate jury provide, however, for a determination of or in fur- in the course whether the death occurred rape kidnapping, or the critical elements therance either aggravated degree. murder the first separate unanimous verdicts Green contends absent possible aggravated on each two elements of degree impossible it is to in the first determine whether rape unanimously jury found that he committed either kidnapping argues He is or both. such a determination particularly ulti- if critical the element of mately rejected. no He such event there asserts upon way jury verdict to know whether the based its rape. That that he committed unanimous determination being case, for must be remanded he contends cause rape. on new trial the issue Standing appellant

A. to raise the issue of "failure appeal. on time instruct" first instruction an trial, request Green failed

At rape verdicts to return unanimous jury requiring trial Further, error the assign did not he kidnapping. provide or to such an instruction give court's failure failure contends the forms. The State necessary verdict *13 appeal error on challenged as cannot be give an instruction v. State where, here, timely request. no there was as v. State (1979); Rhinehart, 923, P.2d 1188 92 Wn.2d 602 Perry, v. (1975); State 730, Fagalde, Wn.2d P.2d 86 539 85 (1946). has 764, While the State P.2d 173 24 Wn.2d 167 rule, within an case falls this expressed general properly will An court appellate exception. equally well established when the on appeal for the first time consider error raised fundamen invades a give to an instruction giving or failure to accused, right of such as right constitutional tal Const, McHenry, Wn.2d State 1, 21; 88 jury trial. art. § Carothers, Wn.2d State 213, (1977); 84 211, P.2d 558 188 McDonald, also State v. (1974). See P.2d 525 731 v. Peter (1968); 474, 480-81, P.2d 345 74 Wn.2d (1968). son, Wn.2d give issue of a failure standing to raise the Green has in question. instruction verdict on the elements unanimity required jury B. Whether rape. kidnapping of in first murder charged aggravated was with

Green in Initiative statutory provided crime degree, specific No. here, unchallenged instruction important 1. Insofar § mur- aggravated one of jury to convict 5 informed beyond a must be convinced degree jury in der the first reasonable doubt that: Emminger Kelly Ann of caused the death

defendant degree rape in the first the course or in of furtherance kidnapping degree. or the first (Italics ours.) finding verdict general returned a unanimous jury in the first murder aggravated of the crime "guilty

degree provide sepa- ..." The verdict form did for a jury rate determination either the two critical ele- underlying charge aggravated degree ments first (i.e., rape kidnapping). murder or agree separate We with Green's contention that absent a unanimous verdict on each of the two critical elements of aggravated degree, impossible the first it is jury unanimously determine found that he rape kidnapping committed either or or both. mistakenly I,

In Green we held was not error have jury requiring alternative, instructed the in the no unanim- ity rape citing elements, as to the or State v. Arndt, 87 Wn.2d 553 P.2d stated: We clearly The statute involved this case describes a single is, however, offense. It one which can commit- be ways, repugnant ted one more neither of which is to to being jury required so, the other. This verdict guilt appellant aggravated be unanimous as to the long presented murder, so as substantial evidence was support each the alternative circumstances or methods *14 committing it. supra Green, 442. Our on Arndt at reliance was largely dependent upon rape our the conclusion both kidnapping supported by and elements were substantial position reject kidnapping evidence, now a we insofar as the rejection only kidnapping issue is concerned. Our leaves rape remaining possible as the element. It is not to know jury deemed that element established jury unanimity absence of some indication of on criti- Clearly, inapposite. cal issue. Arndt is precluded relying

We Eire also from on Arndt for a Arndt, more In fundamental reason. we considered stat provided person ute which could be convicted of grand larceny by any if he or she committed welfare fraud overlapping indistinguishable one of several and often supra Arndt, methods. State were 375. The methods "closely related, constitute^] connected acts which the sin gle fraudulently public obtaining ..." offense of assistance Arndt, case, however, supra

State v. at 382. In the instant murder ways committing aggravated the alternative crimi- and distinct degree separate first are themselves In kid- defendant of either nal order convict a offenses. statutory rape, prove every or the State must napping beyond doubt of that crime a reasonable element Where, here, spe- of a the commission jury. unanimous necessary to a conviction underlying crime is sustain cific offense, unanim- statutory jury for a more serious criminal underlying imperative. crime is ity as to the case, form jury instructions and verdict the instant unanimously appellant find require jury did not attempted degree or to commit either first kid- committed instructed, it rape possible or or both. As was napping resting convicted with six jury jurors have guilt upon kidnapping belief of other six rest- their Thus, to know ing upon rape. impossible their belief element of jury unanimously whether the decided that beyond rape had been established a reasonable doubt. Arndt also our It should be observed that reliance on rape and dependent upon our conclusion that both largely kidnapping supported by were substantial supportive As thus were combined verdict. noted Virginia, of Jackson v. previously, U.S. light v. Cali- (1979) and Leonard L. Ed. 2d Ct. 2781 99 S. (1979) fornia, 443 U.S. L. Ed. 2d 99 S. Ct. 3105 an for the review of both ele- applied we incorrect standard Arndt. severely any upon This undercuts reliance ments. to sup- Having determined there not sufficient evidence element, be remanded port the cause must the first charge for new trial aggravated rape first degree based on the degree element attempted rape. first degree *15 Ultimate the cause. disposition

C. of In Green of noted was substantial we there challenge did rape and that even Green observed Thus, sufficiency suggests, of that evidence. State 234

since sufficient evidence exists to support the element of rape, there is no need to remand the cause for trial on aggravated in solely murder the first degree based on the rape. element agree. We do not Green I was based on a Our unanimous observation standard review rejected since the United States v. Virginia, Jackson Supreme Court supra; Moore Duckworth, 713, 443 61 L. 2d U.S. Ed. 99 S. Ct. 3088 California, supra. and Leonard v. (1979); employed Having incorrect standard in an I, our observation concern was, ing sufficiency course, of rape faulty. the evidence of rape attempted may Whether the element rape be proved beyond a aggravated reasonable doubt establish first degree question is first and foremost a jury appellate rather than one to resolved be an court. In reconsideration, to appellant's answer motion for asserts, authority, State without supporting cause should not be remanded for trial. It argues new cause should be remanded sentence on "the lesser included offense of murder degree the first under RCW 9A.32.020 which necessarily offense was included charge, the instruction to the jury the verdict agree. instant case." We do not

In the case at hand the was not jury instructed on of a subject general, "lesser included offense". In simple remand for on a resentencing "lesser included only permissible jury explic offense" is when the has been Based upon giving such an itly instructed thereon. instruction necessarily held jury has been had to have disposed the elements of lesser included offense offense. See greater have reached the verdict on the Jones, State v. 447, 454, 22 (1979); Wn. App. 591 P.2d 796 Martell, State v. 415, 22 App. Wn. 591 789 Liles, (1979); 166, 171-73, 11 Wn. 521 P.2d App. People see also v. Codding, (1974); 191 Colo. Thweatt, United States v. (1976); P.2d 192 F.2d States, (D.C. Austin v. United 1970); Cir. F.2d (D.C. 1967). addition, may Cir. it is clear a case

235 offense" included on a "lesser resentencing for be remanded expressly trier of fact the discloses the record only if State See offense. of the lesser elements of the found each Jackson, v. App. 40 Ore. State Jones, see also supra; v. (1979). is no such Obviously, there 600, 759, 602 deter- previously have We this record. disclosure clear kid- the support was insufficient mined there to know impossible and that napping element rape unanimously that the element determined jury the doubt. Accord- reasonable beyond a been established had of the all the elements say jury found we cannot ingly, which is murder degree of first included offense lesser Consequently, rape. crime of of the upon proof dependent the lesser sentencing on for cannot be remanded the cause murder. degree of first included offense charge on the for new trial remanded cause is The impacted as it is degree in the first aggravated degree first rape attempted degree of first the element rape.5 JJ., concur. and Hicks, Williams,

Horowitz, analy- majority's (concurring) join C.J. —I Utter, insufficiency of the evidence holdings concerning sis and case, of the in this the failure degree of first ver- of a unanimous subject to instruct on the trial court I Accordingly, believe dict, issue. equal protection the cause remanded conviction must be reversed trial. a new appellant's rejection majority's concur with the I also analy- a different claim, result with Miranda but reach this which questioning police contends that Appellant sis. interro- was a "custodial written statement his resulted requirements to the subject and therefore gation" S. Arizona, L. Ed. 2d Miranda U.S. majority reaffirms 10 A.L.R.3d 974 Ct. penalty provisions Ini having the death 5Green I declared unconstitutional jury. will not resubmitted to issue be tiative the Green claim, I analysis of this which concluded that interrogation" questioning was not a "custodial because the police, questioning, probable did not have time See cause to believe that Green had committed an offense. Green, 436-37, (1979) Wn.2d 588 P.2d 1370 (Green I). necessary I find it to reach an issue which the majority explicitly applica- did address: bility and effect of the additional test "custodial interro- gation" police which to circumstances which the applies do time of probable questioning. not have cause at the *17 Miranda, Supreme United Court States declared in requirements apply established decision 444, every interrogation." "custodial U.S. at 478-79. Miranda Thus, in question applying threshold police questioning "interrogation" was an con whether Innis, v. manner. See Rhode Island ducted "custodial" 446, U.S. 291, 297-302, 305-08, L. Ed. 2d 100 S. Ct. Mathiason, v. L. Oregon (1980); Ed. 429 U.S.

2d express police questioning 97 S. Ct. 711 The see place "interrogation", which took this case was an Innis, v. supra Rhode Island the crit at and therefore ical was "custodial" interrogation issue of Miranda. purposes in Miranda explained Supreme

The United States Court "[b]y questioning we mean interrogation, custodial person has by law enforcement officers after a initiated custody deprived into of his free- been taken otherwise way." at 444. any significant dom of action in 384 U.S. Creach, However, 77 Wn.2d as we observed have " (1969), 194, 198-99, 461 P.2d 329 is difficult set [i]t defining rule" circumstances forth an all-inclusive been of his freedom of "deprived which an individual has way" is therefore entitled significant action [a] Miranda protections. definition of "custodial" all individuals whose enough protect broad must be in a man- actually significant has been restricted freedom Mathiason, narrow Oregon supra yet see ner, *19 enough police briefly to to people's allow restrict free- " dom of action order to conduct type [g]eneral on- ... questioning general questioning the-scene or other part citizens" that of "the traditional function of police Miranda, see State 477; officers in investigating crime." at Hilliard, 89 Wn.2d 430, 436, 573 P.2d 22 The rule determining an signifi- individual has been cantly must, deprived moreover, of his freedom involve objective upon police criteria and not rest sub- officer's jective freedom, to deprive intention the defendant of his subjective defendant's belief regarding whether he was to go. free "The Supreme] States Court could [United scarcely have person intended the issue whether being interrogated had 'been custody taken into or otherwise deprived liberty in any significant way' his to be decided swearing contests which officers would regularly maintain their lack of intention to assert power over a sus- pect save when the circumstances would make such a claim absurd, and defendants would assert with equal regularity they considered themselves to be significantly deprived liberty of their the minute officers began inquire of Hall, them." United States v. (2d 421 F.2d Cir. 1969). Creach, State v.

We supra, held objective one criterion that will definitively classify an interrogation police "custodial" is the possession, officer's at the time of questioning, of probable cause to believe that the inter- rogated individual has committed an offense: an investigating probable officer has cause to

[Office person believe that confronted has committed an offense, the officer expected permit cannot be the sus- pect presence. leave his At point, interrogation custodial, suspect becomes and the must be warned his rights.

Creach, 198; accord, Hilliard, State v. supra at 435-36. Since an officer possessing probable cause "cannot be expected permit suspect to leave his presence," verifiable evi provides objectively factor probable cause individual fact was not free interrogated dence that *20 Creach, however, simultaneously recognized go. to We the deprivation of can demonstrate that other factors freedom, specifically indicated and we defendant's interrogated case are such that an when the facts reasonably believe that he or she was individual would "custo will be considered go, interrogation to then the free Dennis, accord, v. Creach, Wn. See 199; 16 at dial." (1976). 421-22, 417, P.2d 297 Such an assessment App. 558 reasonably would interrogated individual of whether an similarly employed to go, he or she was free believe that determining standard for as a central jurisdictions other purposes for interrogation is "custodial" whether an Curtis, 643, v. See, e.g., United States 568 F.2d Miranda. (1st 307, Scafati, v. (9th F.2d Fisher 1978); 439 310 Cir. 646 719, denied, 939, 91 S. Ct. cert. Cir.), 29 L. Ed. 2d 403 U.S. Arnold, 438, 449, v. 2d 426 People (1971); 66 Cal. 2256 Pugliese, v. (1967); People 26 N.Y.2d Rptr. Cal. 115 58 851 N.E.2d 311 N.Y.S.2d reflects reasonable belief upon The focus a defendant's Miranda. The United underlying policy considerations the "concern explained Supreme Court has States environ- in Miranda was that 'interrogation the Court custody interrogation and interplay created ment' will of his examiner' individual to the 'subjugate the would against compulsory privilege thereby undermine and Innis, 299; supra v. at Rhode Island self-incrimination." Washington, U.S. United States see also (1977); Oregon n.5, S. Ct. 1814 L. Ed. 2d Mathiason, By focusing upon supra at 495. would reason- such that a defendant of the case are

facts freedom of their or she was restrained ably that he believe interroga- of "custodial" go, the definition and not free impact psychological for the the concern tion effectuates interrogated upon can have an custody restraint Which and individual. determining interrogation in this case was whether the probable majority applied

"custodial," Green I questioning was not a cause test and concluded that interrogation officers, this test since the custodial under questioning, probable the time of the did not have cause appellant I, the offense. Green believe that had committed majority, supra however, The Green failed at 436-37. go then on and consider whether the facts this case are reasonably interrogated such that an individual would go. that he under restraint was not free to believe jurisdiction jurisdictions, Prior case law this and other necessary policies underlying Miranda, and the make it applicability effect of this second cri- also consider the interroga- assessing nature of an terion "custodial" tion. police questioning

The record officers' reveals that the *21 appellant in Green not conducted circumstances that reasonably interrogated would lead an individual to believe go. that he or not to she was under restraint and was free eyewitness Green claimed to be an the commission by killing entirely individual, another and he went volun- tarily police to the in routine station accordance with the police procedure taking to the station material witnesses Although police thoroughly to record their statements. the questioned knowledge Green as to his the offense and his they any way assailant, in did not indi- observation the they suspect questioning cate him a rather were eyewitness purported which than as the he be. interrogation in this case was not "custodial" Since the probable or the of examin- under either the cause test test protec- ing belief, the Miranda a defendant's reasonable challenged applicable The not to the statements. tions were only apply point requirements began Miranda at the at probable acquired which cause to believe the detective observing offense, a committed the as a result Green had large suspiciously undershorts and blood stain on Green's descrip- matching receiving report person Green's that a struggling I, with victim. See Green tion had been seen the I conclusion that Accordingly, join majority's at 436-37. in permissible were obtained challenged statements manner. Utter,

Williams, J., C.J. concurs with result) Dolliver, I (concurring agree J. —While concur majority, with result reached cannot our evidence rule is somehow with its view that substantial Supreme expressed from the standard different Virginia, v. L. Jackson Ed. 2d Court 443 U.S. (1979). I agree adopt Ct. Nor can we must 99 S. in Green I, Jackson language of our rule because Green, (1979). 91 Wn.2d in Jackson stated, at 319: Supreme page Court whether, the evi- question viewing relevant is after he [T] any light prosecution, most favorable to the dence of fact could have found the essential ele- rational trier doubt. beyond crime a reasonable ments The Jackson rule was adopted replace the "no evidence" Louisville, 199, 4 L. 2d Thompson U.S. Ed. rule of the no Ct. 80 A.L.R.2d 1355 Under 80 S. rule, upon wholly a conviction based a record any criminal element of the relevant evidence of a devoid constitutionally infirm. charged offense Jackson, however, court stated that The court " the evi- required to 'ask itself whether believes reasonable guilt beyond at established dence trial Jackson, exactly what we said doubt.'" at 318-19. This is I, "In the neces- page determining 443: exists, unnecessary it is for the sary of evidence quantum *22 guilt beyond a reason- [reviewing] court to be satisfied of able doubt." Jackson, Court, Supreme the United States court,

Green I, it is not the role this both have said court beyond a guilt a defendant be satisfied two by the cases question reasonable doubt. The raised rule as articulated the substantial

241 Randecker, State v. (1971), Wn.2d in I, with and followed conflicts the rational-trier- rule of Jackson. of-fact/beyond-a-reasonable-doubt clearly succinctly Justice Rosellini has demonstrated in his dissent there is no distinction between the two If, record, reviewing rules. after an examination of the court is "satisfied that there is 'substantial evidence' case, support particular either the State's or the element (Randecker, 518), question" this is sufficient to meet the Jackson test that a "rational trier of fact could have found beyond the essential elements of the crime reasonable Jackson, Johnson, People at 319. See also doubt." (1980), Rptr. Cal. 3d 606 P.2d 162 Cal. post-Jackson in which Supreme case the California Court upheld its "substantial being "plainly evidence" rule as consistent" with Jackson. majority needlessly

The view of the abandons the sub- Jackson stantial evidence rule. We have said never rule and the substantial evidence rule are different. We have only said that a rule requiring reviewing court to be beyond satisfied of guilt a reasonable doubt is not the itself evidence rule. The United States same as the substantial Supreme Court concurs. We have not previously adopted majority; the rule of the neither has the United States Court, Supreme nor should we now. J. (dissenting) depart see no reason to

Rosellini, —I position from the which upon we took the first hearing this case with respect sufficiency to the of the evidence. The Jackson majority is much holding concerned with the Virginia, 443 U.S. 61 L. Ed. 2d Ct. 2781 S. (1979), reviewing that a court find must sufficient evidence justify jury's finding proved the State's case was beyond a reasonable doubt. I no in substance see difference consistently between that test and the one which we have applied. speak support When we of "substantial evidence verdict," support finding guilt we mean evidence to doubt, beyond jury's a reasonable since that is what *23 course, not this court need decide reflect. Of verdict must verdict, of wit- credibility for the with the agrees that it always But our test has been jury. for the nesses is a matter believed, which, if must be substantial that there doubt. guilt beyond a reasonable support finding would a express, it nev- rather than implied of this test is part If a question. disposition our of the governs ertheless concerned, I in case is believe as the evidence this As far a doubt that could find without minds that reasonable in victim, that term is defined kidnapped the as defendant "'Abduct' means definitions is: One the statute. . RCW deadly . . . . . force." using person restrain a in 9A.40.010(2). did what the defendant precisely That is the victim was question no case. There is this when first screaming kicking She was restrained. further witness, she was and later by the observed say not does deadly force. The statute restrained majority victim." The killing the "deadly force other than it a crime the statute makes us believe that would have in not result only if that force does deadly force use the kind clear to me that victim. It would seem death of the pre- in are in this case engaged by the defendant of actions intended to legislature which the kind of actions cisely the did kidnapping If the statute. kidnapping under the punish victim, only crime death of the not culminate died as a If the victim degree. first kidnapping, would be kid- actions, would be the crime result of the defendant's merge would crime of That nap-murder. jury's to the proven if were the latter with that of Johnson, see State satisfaction, 92 Wn.2d case, of a commission in that I made clear hope As we crime, but only greater incidental may crime be lesser crime, which is an any the less a it that does make crime greater If crime. greater aggravating factor it, not for it does merges but crime proven, the lesser greater efficacy an element its as reason lose offense. every majority argues killing kidnap- must be it

ping, analysis because results "restraint." Under that every kidnapping, assault because likewise results "restraint," interpret albeit a lesser one. would the stat- requiring ute showing purpose as some that restraint was a attack, evidently here, the case since the *24 grabbed defendant had victim and away carried her place from the which found he her. says majority people that the intended Initiative 316 identify

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

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

Wn.2d 588 P.2d 1370 Wright JJ., Brachtenbach, Rosellini, concur with J.

Reconsideration denied October 1980.