Opinion
No. 53646-0-I
Filed: January 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-1-07416-7. Judgment or order under review. Date filed: 12/12/2003. Judge signing: Hon. Steven C Gonzalez.
Counsel for Appellant(s), Susan F Wilk, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Bianca Kwok-Man Tse, King Co Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Martin Estrada-Francisco appeals the judgment and sentence entered following his conviction by a jury of one count of attempted robbery in the first degree. He contends that the evidence was insufficient to support the conviction and that the trial court erred in requiring him to provide a biological sample for DNA identification. Estrada-Francisco raises additional arguments in a pro se statement of additional grounds for review. We reject each contention and affirm.
In his pro se statement appellant states his name as Estrada Martin Francisco. To avoid confusion, we state appellant's name as it appears on the information and the judgment and sentence.
FACTS
The charge arose from an altercation on July 8, 2003, between Estrada-Francisco and Francisco Alfaro. Alfaro testified that he was sitting on a bench smoking a cigarette when Estrada-Francisco, who had been drinking, approached him and asked for a cigarette. Alfaro said that he did not have one. Estrada-Francisco again asked for a cigarette. Alfaro again said that he did not have one and told Estrada-Francisco to leave him alone. Estrada-Francisco pushed Alfaro on the shoulder, called Alfaro a Spanish 'bad word,' and asked why Alfaro did not have a cigarette for him. When Alfaro saw Estrada-Francisco's hand moving down by his leg, he stepped back and said he was going to call the police. Alfaro was afraid; he expected Estrada-Francisco to have a knife. Alfaro saw the tip of a small knife in Estrada-Francisco's hand and saw him swing it up toward Alfaro. Alfaro then turned, ran a few blocks away, and contacted a police officer. Estrada-Francisco chased after Alfaro, but did not catch him.
Heather Wahlstrom testified that she saw a scuffle between two men and heard loud voices. Estrada-Francisco was holding a knife in one hand and was jabbing the knife toward the other man. With his other hand, Estrada-Francisco was trying to grab a bag from the other man, who had his hand in his pocket in the shape of an 'L' as if he had a gun. When Estrada-Francisco persisted, the other man ran away. About a minute later Estrada-Francisco returned. Wahlstrom's fianc called the police as they were driving home. Officers who arrived at the scene found a folding knife in Estrada-Francisco's rear pants pocket.
The jury convicted Estrada of attempted first degree robbery. Sufficiency of the Evidence
Estrada-Francisco contends that the State failed to prove the elements of attempted first degree robbery beyond a reasonable doubt. He admits that the evidence established that he intended to threaten or menace Alfaro and would have been sufficient to support a conviction for assault in the second degree. He argues, however, that the jury could not reasonably infer that he intended to rob Alfaro because Walhstrom's testimony that Estrada-Francisco tried to steal Alfaro's bag is expressly controverted by Alfaro's testimony.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. A claim of insufficiency admits the truth of the State's evidence and all inferences reasonably drawn therefrom. Circumstantial evidence and direct evidence are equally reliable. Credibility determinations are made by the trier of fact and are not subject to review. We 'must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.'
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Salinas, 119 Wn.2d at 201.
State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
State v. Fiser, 99 Wn. App. 714, 719, 995 P.2d 107 (2000). Accord State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
Estrada-Francisco's challenge fails. The State was required to prove that he (1) intended to take Alfaro's personal property against his will, (2) while armed with or displaying what appeared to be a deadly weapon, and (3) took a substantial step toward the commission of the act. After Alfaro twice refused to give Estrada-Francisco a cigarette, Estrada-Francisco displayed what appeared to be a knife and jabbed it toward Alfaro. Moreover, Alfaro testified that he was carrying a bag, and Wahlstrom testified that she saw Estrada-Francisco jabbing a knife toward Alfaro with one hand and trying to grab Alfaro's bag with the other hand. There is no contradiction in the evidence, and even if there were, it was for the jury to resolve. Viewing the evidence and the reasonable inferences in the light most favorable to the State, there was sufficient evidence for the jury to find Estrada-Francisco guilty beyond a reasonable doubt of attempted robbery in the first degree.
RCW 9A.28.020(1) (attempt); RCW 9A.56.190 (robbery); RCW 9A.56.200 (robbery in the first degree); State v. Cook, 69 Wn. App. 412, 415, 848 P.2d 1325 (1993).
DNA Sample
Estrada-Francisco contends that the trial court erred in requiring him to provide a biological sample for DNA identification. The contention fails under State v. Surge and State v. Olivas. In Surge, this court rejected the argument that RCW 43.43.754 and the portion of the defendant's sentence requiring him to provide a biological sample for DNA identification violate a defendant's Fourth Amendment right against unreasonable searches. The court held that Olivas, which upheld an earlier version of the same statute, is controlling and binding on this court.
State v. Surge, 122 Wn. App. 448, 94 P.3d 345 (2004).
State v. Olivas, 122 Wn.2d 73, 856 P.2d 1076 (1993).
Surge, 122 Wn. App. at 460.
Statement of Additional Grounds for Review
Estrada-Francisco contends that he was not given the 911 tape and that his attorney provided shoddy representation. These contentions are inadequate to inform the court of the nature and occurrence of the alleged errors. RAP 10.10(c).
Estrada-Francisco also sets forth his version of the altercation, which differs in many respects from the testimony at trial, although he admits that he pulled out his pocket knife, opened it, placed the blade in the palm of his hand, and showed it to Alfaro in an effort to scare him away. Estrada-Francisco did not testify at trial and presented no evidence. Because our review is limited to the evidence in the record, Estrada-Francisco has failed to raise an issue on appeal.
Affirmed.
BAKER, J., COLEMAN, J., SCHINDLER, J., Judges