Opinion
No. 56729-2-I.
November 13, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 04-1-02015-2, Anita L. Farris, J., entered August 11, 2005.
Counsel for Appellant(s), Nielsen Broman Koch PLLC, Attorney at Law, Seattle, WA.
David Bruce Koch, Nielson Broman Koch PLLC, Seattle, WA.
Eric Francis Christensen — Info Only (Appearing Pro Se), Everett, WA.
Counsel for Respondent/Cross-Appellant, Charles Franklin Blackman, Everett, WA.
Affirmed by unpublished per curiam opinion.
Three men broke into the home of a Marysville family and robbed them at gunpoint. The State charged Eric Christensen with being a participant in the crimes. After a bench trial, the court found that Christensen acted as a lookout during the crimes and convicted him as an accomplice. The court was not obliged to accept the truth of Christensen's statement to the police denying his participation as a lookout. The other evidence was sufficient to support accomplice liability.
FACTS
The evidence at trial showed that Scott and Lisa Rutledge lived in Marysville with their two sons in September 2003. At that time, a neighbor asked the Rutledges to hold his belongings, including a collectible jacket. The neighbor hoped to keep these belongings from his ex-wife, Christine Iverson. When Iverson learned the Rutledges were holding the items, she came to their home and demanded to have them. The Rutledges refused, and Iverson would not leave until ordered to do so by the police.
Ten months passed. On July 27, 2004, around midnight, Lisa woke Scott and told him there was someone banging on the front door. When Scott opened the door he saw at least three men with their faces covered. One pointed a gun at his face, and another hit his head with something hard. The men quickly bound Scott with duct tape.
The men forced Lisa to lie on the floor. They began to take things from various rooms to the living room. They found sets of keys in the kitchen, and demanded that Lisa tell them which key was for the white van outside. When they realized Lisa had actually told them the key to the red van outside, they went to Scott. Scott showed them the correct key for the white van.
The men took items from the home and loaded at least some of them into the white van. Three of the men took Scott to the white van, but only two got into the van. They drove Scott away from his house. Scott heard the men speak inside the van as though four men were involved in the robbery, not three.
At approximately 1:00 a.m., a Washington State Patrol Trooper noticed that the van had a taillight out and was driving erratically. When the trooper tried to make a traffic stop, the van drove away. The trooper gave chase for six miles, and the van eventually became stuck in brush and trees. The two robbers had fled by the time the trooper got to the van, where he freed Scott.
Back at the house, Lisa and the two children eventually stopped hearing the noises of the men moving their possessions. Fearing the men were still in the home, they did not move for at least 30 more minutes, when police arrived. By that time, their red van was also missing.
The investigation eventually led police to suspect that Christensen was one of the men involved in the break-in and robbery. A Marysville detective interviewed him and recorded the interview on tape. On the tape, Christensen admitted accompanying the men on the robbery. He said he had been with a woman named Nicole — whose address, name and telephone number he did not know — on the night in question. That night he got a telephone call from Mark Terrazas and Rick Upchurch. The men told him to meet with them because they needed "backup". Christensen and Nicole met with Terrazas at a gas station, and Terrazas led them to the home of Mack Hiatt. Hiatt was Iverson's husband.
According to Christensen's taped statement, when he arrived at Hiatt's home, Terrazas, Upchurch and Hiatt drank whiskey and smoked methamphetamine. Hiatt was loading a gun and talking about how he was mad at someone who insulted Iverson when she had tried to get a jacket. Hiatt said he wanted the jacket back, and that Christensen, Terrazas, and Upchurch could take anything they wanted out of the man's house once they got inside.
Christensen told police that he had not wanted to participate in the robbery, but felt forced to do so because Nicole had been taken into the house by Hiatt and told to wait with Iverson. All four men changed their clothes, and each took a bandanna. Hiatt gave the gun to Terrazas and said, "don't let me kill anybody." Then the four men rode together in a car to the Rutledge home. Christensen could not remember the make or model of the car, but Terrazas drove it and parked it just south of the Rutledge home. Christensen stated that when the other three men got out of the car and walked toward the home, he walked away. He said he heard screaming even when he got as far as a quarter mile down the road. At that point he realized he did not know where he was, so he walked back to the car and drove it away. He drove around for about an hour, before he returned to Hiatt's home.
A Marysville Police Department detective testified that, in the unrecorded portion of the interview, Christensen had said he had left the Rutledge home without the other three men when he heard police sirens. He also admitted no one had ever threatened Nicole, and that no one had indicated Nicole would be hurt if he did not help with the break-in.
The State charged Christensen and the other men with several crimes. Christensen's charges included two first degree robbery and four first degree burglary charges, as well as kidnapping and assault charges. Each of the charges carried firearm sentencing enhancements. Christensen waived the right to a jury trial, and the case was tried to the bench.
At the trial, the State presented the testimony of Scott and Lisa Rutledge, their older son, and several law enforcement officers. The court listened to Christensen's recorded interview with police. A neighbor testified that he saw a car parked just south of the Rutledge home for three to four minutes before it drove away. The car's brake lights were on during that time, indicating someone was inside the car. He did not see anyone walking down the street away from the car. He heard more than one of the car's doors close before the car drove off. A police officer testified that police found Lisa Rutledge's day planner near where the car had been. Christensen did not testify or call witnesses to do so.
The court found Christensen guilty of the robbery and burglary charges, and acquitted him of the assault and kidnapping charges. The court first announced this conclusion in an oral ruling on December 29, 2004. That oral ruling indicated the court had rejected the State's theory that Christensen had been one of the men in the house. Rather, the court believed Christensen was guilty as an accomplice for acting as a lookout as the robberies went on.
Before the court entered written findings and conclusions, Christensen moved for a new trial. He contended among other things that the evidence was insufficient. The court denied the motion on July 29, 2004. In doing so, the court made additional oral findings. The court then entered written findings and conclusions on August 5, 2005, referencing and incorporating both sets of oral findings it had made in the earlier proceedings. At sentencing, the court sentenced Christensen on one of the burglary charges and both of the robbery charges. The court imposed a 228 month sentence, including firearm enhancements. Christensen appeals.
SUFFICIENCY OF EVIDENCE FOR ACCOMPLICE LIABILITY
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to 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 of its reasonable inferences. Credibility determinations are for the trier of fact and are not subject to review. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
A person is an accomplice of another person in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he "aids or agrees to aid such other person in planning or committing it". RCW 9A.08.020(3)(a)(ii). For a defendant's presence at the scene to support accomplice liability, the defendant must also be ready to assist in the commission of the crime. State v. Robinson, 35 Wn. App. 898, 903, 671 P.2d 256 (1983).
Christensen challenges several of the court's oral and written findings that show he either assisted the crimes or stood ready to do so. Taken together, the relevant findings show that Christensen agreed to help the men commit the crimes; that he went with them to the scene and remained with the car while the men committed those crimes; that while he waited for the men, he was ready to help them by serving as a lookout; that to the extent he left the car he did so to fulfill his role as a lookout; and that by driving the car away from the scene, Christensen was helping conceal evidence of the crimes.
Christensen's statement to the police supports these findings. It shows that Christensen knew of the plan, agreed to go with the other men to the Rutledge home, took a bandanna, got the keys to the car once they arrived, and returned the car to the other men after the crime. The testimony of the neighbor shows that the person who stayed outside was in the car waiting for at least three to four minutes before it left, in contradiction to Christensen's statement that he did not remain at the scene ready to assist. This evidence is sufficient to establish that Christensen agreed to participate in the crimes and did so.
Christensen contends the court should not have disregarded the portions of his statement to police in which he provided non-criminal explanations for his behavior. But each of these arguments is not so much a challenge to the sufficiency of the evidence underlying the court's findings as an argument that his statement was more credible than the inferences the court drew from all the evidence. We do not review such challenges.
DOUBLE JEOPARDY
Christensen contends double jeopardy bars the State from sentencing him for two robberies because his accomplices committed only one forcible taking of property from the Rutledges. He asks this court to vacate one of his convictions and remand for resentencing.
Double jeopardy principles protect a defendant from being convicted more than once under the same statute if the defendant commits only one "unit" of the crime. State v. Tvedt, 153 Wn.2d 705, 710, 107 P.3d 728 (2005). The number of convictions cannot be based merely on the number of items taken, nor on the number of persons placed in fear. Tvedt, 153 Wn.2d at 714. The unit of prosecution for robbery is each separate forcible taking of property from or in the presence of a person having an ownership, representative, or possessory interest in the property, against that person's will. Tvedt, 153 Wn.2d at 714-715.
In Tvedt, a robber forced a gas station owner and cashier to lay on the floor in the station's office. The robber took a deposit bag full of money, then forced the station's owner to give him the keys to the owner's truck. The same robber went to a second gas station two days later. The robber forced two station employees to lie on the floor, took a bag full of money, and then took an employee's cellular telephone. On appeal, the robber contended only one robbery occurred in each gas station. The Tvedt court disagreed: "Tvedt was properly charged with and convicted of four counts of robbery." Tvedt, 153 Wn.2d at 719. The court held the taking of the keys at the first station was separate from the taking of the deposit bag, and the taking of the bag of money at the second station was separate from the taking of the telephone.
The trial court likened this case to Tvedt and ruled that Christensen was properly convicted of at least two robberies: "from one victim, there was a taking of keys, from another victim, there was a taking of other property." Christensen contends Tvedt does not support two robberies because neither of the Rutledges "had the keys taken by force from their personal possession". Rather, Christensen argues, "the keys (like everything else in the home) were taken from a common area (a hook in the kitchen)."
Report of proceedings (8/5/2005) at 32.
But the State need not show a taking from a victim's "personal possession" for each unit of robbery. Robbery can also occur when property is taken "from the presence" of a victim. After taking substantial property from Scott and Lisa Rutledge's home in their presence, the robbers demanded that Lisa Rutledge show them which key would operate the white van. The robbers then took those keys away, too. Thus, at least two takings occurred in the Rutledge home. Those takings occurred in the presence of and against the will of at least two people, each with an ownership interest in the items taken. We conclude the trial court did not violate double jeopardy by sentencing Christensen on two robbery convictions.
STATEMENT OF ADDITIONAL GROUNDS
Christensen contends, pro se, that his Fifth Amendment rights were violated because he was denied access to his attorney during police questioning. This claim is based on facts that the trial court rejected as non-credible after a CrR 3.5 hearing. We decline to review it further.
Christensen next contends the statement used to convict him was coerced. The evidence at the CrR 3.5 hearing showed that Christensen had been read his rights several times, indicated he understood those rights, waived those rights repeatedly, and was not intoxicated when he waived those rights. During the interview in which he made the statements at issue, he was not handcuffed and was not threatened or promised anything. The interview was less than an hour long. This record does not support a claim of coercion.
Christensen next contends he was convicted on the basis of his statement alone. To the extent he is contending his confession was not admissible under the corpus delicti rule, he has failed to preserve that claim for appeal. State v. C.D.W., 76 Wn. App. 761, 764, 887 P.2d 911 (1995) ("failure to comply with the corpus delicti rule is a nonconstitutional error requiring a proper objection").
Christensen finally contends the prosecutor improperly used his codefendants' statements to convict him because those statements had been excluded by the trial court. The parties did agree that certain of the codefendants' statements — those made after the robbery — were inadmissible, but those statements were not admitted at trial.
Report of Proceedings (12/6/2004) at 15.
Affirmed.
SCHINDLER and COLEMAN, JJ., concur.