Opinion
No. 37841-8-II.
January 8, 2010.
Appeal from a judgment of the Superior Court for Pierce County, No. 08-1-00180-8, Thomas Felnagle, J., entered June 6, 2008.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Hunt, J., concurred in by Houghton and Bridgewater, JJ.
Daniel Lawrence Day appeals his jury trial convictions for first degree robbery and second degree assault of Shelley Day, his ex-wife. He asks us to reverse his conviction for first degree robbery (Count I), arguing that the State failed to present sufficient evidence to prove one of the essential elements of the offense, namely that he used force to overcome Shelley's resistance to his taking her purse. In the alternative, Day asks us to dismiss his conviction for second degree assault (Count II) because the trial court erred in failing to merge his two convictions at sentencing to prevent double jeopardy. We affirm Day's conviction on Count I (first degree robbery) and remand to the trial court to resentence him on Count I and to vacate his conviction on Count II (second degree assault).
Because the defendant and the victim share the same last name, we refer to Shelley Day by her first name to avoid confusion. We intend no disrespect.
FACTS I. Assault and Robbery
On December 31, 2007, Day called Shelley and asked her to withdraw cash for him from her account. In exchange, he said that he would give her a check for the equivalent dollar amount, approximately $137. Shelley agreed, and they planned to meet at the Sumner Fred Meyer.
Although the State's witnesses did not testify about the check's amount or the reason why Day could not deposit the check himself, Day's defense counsel noted during motions in limine that (1) the check was from Day's employer for $137, and (2) Day had asked Shelley to deposit the check because "he didn't have any bank accounts." I VRP (May 28, 2008) at 5.
Since their divorce several years earlier, Day and Shelley had rarely seen each other. But they had children in common, and they spoke to each other on the phone from time to time. Five to ten times in the past, Shelley had done favors of this sort for Day.
When Shelley arrived at Fred Meyer, she parked her van and met Day in the parking lot. They walked together to a nearby ATM machine, where Shelley deposited Day's check for $137 in the machine's drop-box and withdrew cash for him from her account; she had additional cash in her purse, some of which she apparently combined with the ATM cash that she gave to Day. See 1 Verbatim Report of Proceedings (VRP) (May 28, 2008) at 3, 58. After receiving the cash from Shelley, Day asked her for a ride home, and she agreed.
The record does not specify the amount of cash that Shelley withdrew from the ATM machine. Nor does it specify the amount of cash that she gave to Day, some of which she apparently took from what she already had in her purse.
As Shelley pulled up to the entrance of Day's apartment complex, he asked her to go inside the apartment with him; but she refused. In response, Day grabbed her hair and pulled her toward him, saying, "[Y]es, you are going to go to my apartment." I VRP (May 28, 2008) at 61. At the same time, he reached over and pushed the van's gearshift into park. When Shelley took the keys out of the ignition, Day began to strike her repeatedly in the face and head with his fists. During the assault, Shelley managed to honk the horn on the van's steering wheel, prompting Day to flee from the van, taking her purse with him.
Shelley felt "stunned" after the attack and failed to notice at first that Day had taken her purse with him. I VRP (May 28, 2008) at 64. She did, however, specifically remember placing her purse on the van's floor between the two front bucket seats; and, moments after Day had fled, she noticed that her purse was no longer in the van where she had put it. Her missing purse contained more than $200 in cash, plus gift cards, credit cards, and her driver's license. Shelley called 911 to report the incident and waited in the parking lot of the apartment complex for law enforcement to arrive.
After receiving the information from police dispatch, Sumner Police Officer Marcus McDonald and Detective Jason Temple contacted Shelley. Temple began searching the area for Day while McDonald helped Shelley prepare a statement about the incident. McDonald photographed her injuries and noted her "busted lip, red face, swollen eye[,] and jaw pain" in his report. Clerk's Papers (CP) at 3.
Shelley refused medical treatment immediately after the incident. But she went to the hospital two days later because she could no longer move her facial muscles without pain. It took nearly four weeks for Shelley to recover from the pain in her face and jaw, the broken blood vessels in her eyes, and other bruising on her face. Several days after the incident, police officers located and arrested Day.
II. Procedure
The State charged Day with first degree robbery under RCW 9A.56.190 and RCW 9A.56.200(1)(iii), Count I; and second degree assault under RCW 9A.36.021(1)(a), Count II. The information noted that both charges constitute acts of domestic violence under RCW 10.99.020.
At trial, Shelley testified, "As soon as I saw [Day], he kind of got out of the van, just closed the door, and I was, you know, was kind of a little stunned, and then I looked down, and my purse wasn't there." I VRP (May 28, 2008) at 64. Officer McDonald testified that when he observed Shelley at the scene, "her face was a little swollen and red," and she appeared to be "visibly shaken" and "afraid." I VRP (May 28, 2008) at 101-02. Shelley testified that after the incident, Day called her numerous times on the phone and told her that he had her purse and wanted to give it back to her. She testified that she had cancelled her credit cards immediately after the incident and later replaced her purse for $50.
After the State presented its case in chief, Day moved to dismiss the first degree robbery charge, arguing that the State had failed to demonstrate that he specifically used force against Shelley for the purpose of taking her purse. The trial court denied the motion, reasoning that the jury should decide this question of fact. Day presented no defense case.
The trial court gave the following "to-convict" instruction to the jury:
To convict the defendant of the crime of robbery in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 31st day of December, 2008 the defendant unlawfully took personal property, not belonging to the defendant, from the person or in the presence of another;
(2) That the defendant intended to commit theft of the property;
(3) That the taking was against the person's will by the defendant's use or threatened use of immediate force, violence or fear of injury to that person;
(4) That the force or fear was used by the defendant to obtain or retain possession of the property or to prevent or overcome resistance to the taking or to prevent knowledge of the taking;
(5) That in the commission of these acts or in immediate flight therefrom the defendant inflicted bodily injury; and
(6) That any of these acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
CP at 23 (Instruction No. 8). Day neither objected to this instruction nor proposed an alternative "to-convict" instruction. The jury found Day guilty on both counts.
At sentencing, Day argued that his two convictions should merge for double jeopardy purposes. Rejecting this argument, the trial court sentenced Day to 36 months of confinement on Count I (first degree robbery) and six months of confinement on Count II (second degree assault), to run concurrently. The trial court also subtracted 148 days from Day's sentence to adjust his confinement term for credit for time served.
The trial court also imposed community custody conditions on both counts, prohibiting Day from consuming alcohol or contacting Shelley for 18-36 months.
Day appeals both convictions.
ANALYSIS I. First Degree Robbery Conviction
Day asks us to reverse his first degree robbery conviction, Count I because the evidence was insufficient to prove that he used force "specifically for the purpose of taking or retaining the purse or for preventing resistance to the taking." Br. of App. at 7-8. He also argues that the trial court erred in refusing to grant his motion to dismiss at the close of the State's case because the State had failed to prove that his assault was related to his act of taking Shelley's purse. These arguments fail because the record demonstrates that Day's use of force against Shelley enabled him to take her purse without her knowledge by preventing or overcoming her resistance to the takingmml.
A. Standard of Review
Constitutional due process requires the State to prove beyond a reasonable doubt all the necessary facts of the crime charged. State v. Potts, 93 Wn. App. 82, 86, 969 P.2d 494 (1998). In reviewing Day's conviction for first degree robbery, we must determine whether the evidence, viewed in the light most favorable to the State, was sufficient to allow a rational trier of fact to find beyond a reasonable doubt the essential elements of the crime. Potts, 93 Wn. App. at 86.
In conducting this review, we determine only whether substantial evidence supports the conviction. Potts, 93 Wn. App. at 86. A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences arising from it. Potts, 93 Wn. App. at 86. In reviewing the State's evidence, circumstantial evidence is as reliable as direct evidence. State v. Turner, 103 Wn. App. 515, 520, 13 P.3d 234 (2000).
B. Definition RCW 9A.56.190 defines "robbery" as follows:
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.
Under RCW 9A.56.200(1)(a)(iii), robbery is a first degree offense when the perpetrator inflicts bodily injury on another person during the commission of the robbery or in immediate flight therefrom.
Thus, to convict Day of first degree robbery under the facts of this case, the State had to prove that he (1) unlawfully took Shelley's purse in her presence and against her will with the intent to take it unlawfully by using or threatening to use immediate force or violence, (2) used force or fear to obtain possession of her purse or to overcome her resistance to or knowledge of the taking, and (3) inflicted bodily injury during the commission of these acts or in immediate flight therefrom.
C. Sufficient Evidence
Day argues that the State failed to prove that his assault or use of force against Shelley related to his act of taking her purse because "[t]he assault was not during the theft, nor was it `in immediate flight therefrommml'." Br. of App. at 7. Instead, he characterizes the assault as "a separate act, committed for a completely separate purpose, completely unrelated to the goal of a theft." Br. of App. at 7. But this argument fails because Day's cited case law fails to support reversal under the facts of this case.
Day quotes from our State Supreme Court's dissenting opinion in State v. Allen for the proposition that "[m]erely demonstrating that the use of force preceded the theft does not amount to robbery." 159 Wn.2d 1, 10, 147 P.3d 581 (2006)); Br. of App. at 6-7. Allen, however, involved different facts and, thus, does not support Day's argument. Nonetheless, our State Supreme Court's reasoning in Allen guides our analysis of Day's sufficiency argument. There, Allen appealed his aggravated first degree murder conviction, for which robbery was the aggravator, after confessing to beating his mother to death and then removing a cash box from her bedroom. Allen, 159 Wn.2d at 5, 10. We affirmed his conviction on appeal. Allen, 159 Wn.2d at 9. Allen then argued to our State Supreme Court that sufficient evidence failed to support the jury's finding that he had used force "in the course or furtherance of a robbery." Allen, 159 Wn.2d at 7. Rejecting this argument, the Supreme Court noted that "considerable circumstantial evidence" demonstrated that Allen had "used force, at least in part, to obtain the cashbox." Allen, 159 Wn.2d at 9-10. In affirming his conviction, the court highlighted trial testimony that Allen (1) often had no money, (2) had previously asked his mother for $400, (3) had discussed his financial difficulties with his mother just before murdering her, (4) had previously mentioned the cashbox to a friend, and (5) had spent the money in the cash box after taking it. Allen, 159 Wn.2d at 9-10.
The Allen majority agreed with the dissent on this point. 159 Wn.2d at 10 (Footnote No. 4).
Day also relies on State v. Johnson, 155 Wn.2d 609, 121 P.3d 91 (2005) and State v. Larson, 60 Wn.2d 833, 376 P.2d 537 (1962). We agree with the State that these cases, like Allen, are factually inapposite and, thus, do not support Day's argument.
We affirmed in an unpublished opinion (NO. 29542-3-II) filed on March 8, 2005.
Like Allen, Day appeared to have ongoing financial problems. For example, he had asked Shelley for cash 5-10 times in the past. Similar to Allen's circumstances with his mother, Day had discussed his financial difficulties with Shelley; and he knew that Shelley had extra cash in her purse when he accompanied her to the ATM machine to withdraw additional cash for him. Sitting in the passenger's side of Shelley's van, Day could easily reach Shelley and her purse without moving out of his seat. Day assaulted Shelley after she drove him home, less than 30 minutes after she had withdrawn cash from an ATM machine, at his request and for his benefit, and after she had given him the ATM cash, supplemented with cash from her purse. Similar to the facts in Allen, Day's assault of Shelley and taking her purse occurred in the same place and at approximately the same time: Only moments after Day assaulted her and fled from her van, Shelley noticed that her purse was missing.
The force Day used against Shelley enabled him to overcome her resistance to his taking her purse. Shelley testified that she was so "stunned" by Day's physical attack that at first she did not even notice that he had taken her purse. I VRP (May 28, 2008) at 64. The record supports the State's characterization of the evidence — that Day's assault of Shelley overwhelmed her "to the point that she was unable to resist the taking of her purse or even [to] notice it." Br. of Resp. at 6. Because the foregoing facts demonstrate that Day's use of force, at least in part related to preventing or overcoming Shelley's resistance to the taking of her purse, we hold that sufficient evidence supports the jury's finding him guilty of first degree robbery.
II. Sentencing; Double Jeopardy
In the alternative, Day argues that the trial court erred in failing to merge his two convictions at sentencing in violation of state and federal constitutional prohibitions against double jeopardy. More specifically, he contends that (1) his second degree assault conviction (for "recklessly inflict[ing] substantial bodily harm") forms the basis for elevating his robbery conviction to a first degree offense (for "inflict[ing] bodily injury" while "[i]n the commission of a robbery or [in] immediate flight therefrom"); and, (2) in failing to merge Day's convictions at sentencing, the trial court effectively punished him twice for the same conduct. RCW 9A.36.021; RCW 9A.56.200. Conceding that Day is correct on this point, the State acknowledges that it erred in asking the trial court to impose separate sentences for his two convictions.
Accepting the State's concession, we hold that the trial court erred in failing to merge Day's first degree robbery and second degree assault convictions at sentencing because, under the facts of this case, the "use-of-force" element in Day's second degree assault conviction forms the basis for elevating his robbery conviction to a first degree offense. Therefore, sentencing Day for both crimes unconstitutionally places him in double jeopardy. State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005).
State and federal constitutional prohibitions against double jeopardy forbid multiple punishments for the same offense. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995); State v. Womac, 160 Wn.2d 643, 650-51, 160 P.3d 40 (2007); U.S. Const. amend. V, art. I, § 9; Wash Const. art. I, § 9. Although the State may file multiple charges arising from the same criminal conduct, multiple convictions and punishments offend double jeopardy unless the legislature has clearly provided for separate crimes and punishments. Freeman, 153 Wn.2d at 770-72. To determine whether the legislature intended to impose multiple punishments for a single act of criminal conduct, we apply the merger doctrine of statutory interpretation. Freeman, 153 Wn.2d at 777. This doctrine applies only when the legislature has clearly indicated that to prove a particular degree of the crime, the State must prove not only that the defendant committed a crime, but also that the crime "`was accompanied by an act which is defined as a crime elsewhere in the criminal statutes.'" Freeman, 153 Wn.2d at 777-78 (quoting State v. Vladovic, 99 Wn.2d 413, 420-21, 662 P.2d 853 (1983)).
In Freeman, our State Supreme Court wrote:
Under the merger doctrine, when the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greater crime.
* * *
[W]e conclude that there is evidence that the legislature did intend to punish first degree assault and robbery separately. But we find no evidence that the legislature intended to punish second degree assault separately from first degree robbery when the assault facilitates the robbery.
153 Wn.2d at 776, 779.
Turning to the proper remedy, Day asks us to reverse his first degree robbery conviction; in the alternative, he asks us to dismiss his second degree assault conviction if we affirm his first degree robbery conviction. The State asks us to affirm Day's first degree robbery conviction, Count I, and to remand to the trial court for resentencing "solely on that conviction." Br. of Resp. at 15. The State does not, however, propose a remedy for Count II, which it concedes merges with Count I. But as our State Supreme Court recently held en banc in State v. League, "When two convictions violate double jeopardy principles, the proper remedy is to vacate the lesser conviction and remand for resentencing on the remaining conviction."
Citations to this per curiam opinion ( No. 82991-8), filed on December 10, 2009, are not currently available. See also Womac, 160 Wn.2d at 664.
Accordingly, we affirm Day's conviction on Count I (first degree robbery) and remand to the trial court to resentence him on Count I and to vacate his conviction on Count II (second degree assault).
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.
Houghton, P.J. and Bridgewater, J., concur.