Opinion
No. 29938-1-II.
File Date: March 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No: 02-1-02223-5. Judgment or order under review. Date filed: 02/04/2003. Judge signing: Hon. John P Wulle.
Counsel for Appellant(s), Suzan L. Clark, Attorney at Law, 1101 Broadway St. Ste 250, Vancouver, WA 98660-3320.
Counsel for Respondent(s), Richard Alan Melnick, Attorney at Law, 1013 Franklin St, PO Box 5000, Vancouver, WA 98666-5000.
A jury convicted Alberto Jesus Lomeli of second degree robbery. He appeals, arguing insufficient evidence of actual or threatened force and trial court evidentiary error. We affirm.
FACTS
We recite the facts from the record at trial. Apparently, malfunctioning audio/visual equipment led the prosecutor and Lomeli's trial attorney to provide a joint recollection statement of Lomeli's and Bailey's testimonies for the appellate record. Because sufficiency of the evidence is raised, we set forth the facts and reasonable inferences in light most favorable to the State.
On November 5, 2002, Lamont Bailey, a Fred Meyer's loss prevention officer, observed Lomeli conceal a razor, tool kit, flashlight, and small stone figurine under his coat and shirt while inside the store. He then watched Lomeli leave the premises, taking the hidden items without paying for them. Once outside the store, Bailey verbally identified himself and showed Lomeli his badge.
Lomeli fled and Bailey gave chase, later testifying at trial that he repeatedly identified himself and shouted for Lomeli to stop. Bailey detained Lomeli, but before he could place him in handcuffs, Lomeli struck Bailey in the face. Bailey then escorted Lomeli to the loss prevention office where he recovered the concealed items.
The State charged Lomeli with second degree robbery, in violation of RCW 9A.56.190 and .210.
RCW 9A.56.190 states:
A person commits robbery when he unlawfully takes 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. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.
RCW 9A.56.210 states: `(1) A person is guilty of robbery in the second degree if he commits robbery. (2) Robbery in the second degree is a class B felony.'
At trial, Clark County Sheriff's Deputy Joseph McLoughlin testified that when he arrived at Fred Meyer, Lomeli was in handcuffs in Bailey's presence. He advised Lomeli of his Miranda rights, and Lomeli said that he understood those rights and began talking freely with McLoughlin. Lomeli admitted to intending to take the items at the time he entered the store. But he also denied striking Bailey, although he admitted that he may have unintentionally struck Bailey in the face during the parking lot struggle.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
McLoughlin also testified that he did not see visible signs of injury on Bailey's head or face. Over defense counsel's objection that McLoughlin was not a medical expert, he testified that in his 15 years of experience as a deputy, he observed many individuals hit in the face or head who did not have visible signs of injury.
Lomeli appeals.
ANALYSIS Insufficient Evidence
Lomeli first contends that insufficient evidence supported his conviction of second degree robbery. Because he denies hitting Bailey, he asserts that the State did not prove all of the elements of second degree robbery beyond a reasonable doubt.
To determine whether sufficient evidence supports a conviction, we use the familiar tests found in State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992), and State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). We view facts and inferences in the light most favorable to the State, and we will find the evidence sufficient if it permits a rationale trier of fact to find the essential elements of the crime beyond a reasonable doubt.
We need not be convinced of a defendant's guilt beyond a reasonable doubt, only that substantial evidence supports the State's case. State v. Fiser, 99 Wn. App. 714, 718, 995 P.2d 107, review denied, 141 Wn.2d 1023 (2000). We view circumstantial and direct evidence as equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). And we leave credibility determinations and weighing of evidence to the fact finder and do not review them on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Second degree robbery, RCW 9A.56.190 and .210, requires `(a) a theft; (b) the use or threatened use of immediate force or fear of injury; and [c] the force or fear be used to obtain or retain the property.' State v. McIntyre, 112 Wn. App. 478, 481, 49 P.3d 151 (2002).
Under the robbery statute, force can be in the form of `escape' including violence in flight immediately after the taking. McIntyre, 112 Wn. App. at 482; State v. Manchester, 57 Wn.
App. 765, 770, 790 P.2d 217, review denied, 115 Wn.2d 1019 (1990). Any amount of force or threat that induces a person to part with his property is sufficient to sustain a conviction for robbery. State v. Handburgh, 119 Wn.2d 284, 293, 830 P.2d 641 (1992).
Lomeli admits striking Bailey in the head after being subdued in the parking lot. He argues that it was unintentional. Bailey testified that Lomeli hit him. The jury heard both Bailey's and Lomeli's versions and it chose to believe Bailey. We do not disturb a fact finder's credibility determination. Sufficient evidence supports Lomeli's conviction of second degree robbery.
ER 701
Lomeli next contends that the trial court abused its discretion in admitting McLoughlin's testimony about Bailey's injuries, contending it was improper medical expert opinion. He asserts that under ER 701, McLoughlin's testimony was not lay opinion and that `his opinion whether being punched in the face would leave a mark on the person punched' bolstered Bailey's testimony. Appellant's Brief at 5.
We accord the trial court great discretion in admitting lay opinion testimony. State v. Ortiz, 119 Wn.2d 294, 308, 831 P.2d 1060 (1992). We review its decision for an abuse of discretion. Ortiz, 119 Wn.2d at 308. A trial court abuses its discretion if it bases its decision on manifestly unreasonable or untenable grounds. State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001).
ER 701 provides, `[i]f the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.'
Lay opinion testimony that has a factual basis founded on personal observations in support of the opinion is admissible. City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993), review denied, 123 Wn.2d 1011 (1994). But if the opinion relates to a core case element, `there must be a substantial factual basis supporting the opinion.' State v. Farr-Lenzini, 93 Wn. App. 453, 462-63, 970 P.2d 313 (1999).
At trial, McLoughlin testified,
[Prosecutor]: Q. Okay. Did Mr. Bailey require any medical aid or anything like that?
A. No. I asked him if he needed medical assistance and he said he did not.
Q. Okay. All right. So in your fifteen years as a deputy, have you had plenty of opportunity to observe people who have been punched in the head?
A. Yes.
Q. And have you —
[Defense Attorney]: Your Honor, I'm going to — I'm going to object to this line of questioning. He's not a medical expert.
[Prosecutor]: I'm not asking for a medical opinion.
THE COURT: I need a question to have an objection. So I haven't heard the question yet.
[Prosecutor]: All right.
[Prosecutor]: Q. Have you during your fifteen-year career personally observed situations where people have been punched in the head or face and not had a mark?
A. Yes.
Q. Okay. Have you been punched in the head or face?
A. Yes.
Q. What happens to you when you get punched in the — in the face?
A. Well, generally —
[Defense Attorney]: Your Honor, I'm going to object to this line of questioning.
THE COURT: Grounds?
[Defense Attorney]: That it's not — he's trying to testify as an expert in that area.
THE COURT: I disagree, counselor, he's testifying as a lay witness at this point. Overruled. You may proceed.
[Prosecutor]: Q. So what — what happens to you if you get punched in the head not like not in the nose or the eye?
A. Unless you bloody my nose, I generally don't mark up.
Q. Okay. Based on your — your fifteen years of experience, do people all generally seem to show injuries the same or different, based on your personal observations?
A. I think that everybody shows injuries differently.
Report of Proceedings at 26-27.
Lomeli argues that McLoughlin was not present when he hit Bailey and, thus, his testimony is inadmissible. ER 701 does not require that McLoughlin's testimony be from his personal observation at the moment Lomeli hit Bailey.
McLoughlin's testimony did not go to a core element of the case, but rather to Bailey's injuries. McLoughlin offered further testimony that he had personal experience with individuals who have been hit in the face and head and showed no visible signs of injury. He also stated that he did not `mark up' when he was hit in the face. McLoughlin's personal observations aided the jury in its fact finder role and did not bolster Bailey's credibility.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT C.J. and QUINN-BRINTNALL, JJ., concur.