Opinion
No. 51771-6-I.
Filed: June 7, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-04519-3. Judgment or order under review. Date filed: 01/23/2003. Judge signing: Hon. Robert Alsdorf.
Counsel for Appellant(s), Devennice Gaines (Appearing Pro Se), 4563 35th Ave. S., C/O Orletta, Seattle, WA 98118.
Nicholas Wright Marchi, Carney Marchi PS, 219 1st Ave S Ste 305, Seattle, WA 98104.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Timothy John Leary, Attorney at Law, W554 King Co Cthse, 516 3rd Ave, Seattle, WA 98104-2385.
Devennice Gaines was convicted of attempted robbery in the first degree with a firearm enhancement, and assault in the second degree with a deadly weapon enhancement. Although he asserts a number of claimed errors, none has merit. Evidence first discovered in an unreasonable warrantless search was properly admitted under the inevitable discovery doctrine, each conviction and weapon enhancement was supported by sufficient evidence, and Gaines cannot show that his sentence violated his right to equal protection. His additional grounds for review are equally meritless. Consequently, we affirm.
FACTS
Devennice Gaines, Norman Gaines, and Leandre Gaines held Jerry Hanson against his will for two days as they attempted to rob him. Hanson had previously lent them money, and they wanted more money from him. On April 29, 2002, Devennice and Norman drove Hanson to his bank to withdraw money. While the Gaineses waited outside the bank, Hanson attempted to flee. Within minutes, however, Devennice found Hanson hiding in a nearby alley, and the men took Hanson to the home of Arletta Gaines, Devennice's mother.
For the remainder of this opinion, Gaines family members' first names will be used for clarity.
Inside the house, Devennice punched Hanson in the face and hit him with a steel bar at least ten times. As a result of this attack, Hanson suffered injuries to his hands, head, and torso, including a broken rib. Later that day, Hanson overheard Norman, Devennice, and Leandre discussing the money that Hanson was supposed to obtain, and Leandre threatened to shoot Hanson if he did not get the money. Leandre then showed Hanson a revolver he had tucked in his waistband
Devennice and Norman next took Hanson from Arletta's house to a house in SeaTac, where they locked him in the basement. On the following day, April 30, Norman drove Hanson to a Merrill Lynch office to get money. At the office, Hanson managed to escape from Norman.
Later that day, Hanson reported the incident to Officer Michael Waters of the Seattle Police Department, and gave him the defendants' names as well as the make, model, and license plate number of Norman's car. While on routine patrol the next day, Waters saw Norman's car, conducted a felony stop, and arrested both occupants, Norman and Devennice.
During the search of Norman's car incident to arrest, Waters found a loaded pistol in the unlocked glove box, and a magazine for that pistol under Norman's seat. Waters then opened the trunk of the car without a search warrant, observed the barrel of an assault rifle, and immediately closed the trunk. Afterward, Detective Raleigh Evans presented an affidavit for a warrant to search Norman's car. The four-page affidavit explained in great detail the defendants' conduct toward Hanson and the way in which Norman's car figured in the two-day robbery attempt. Four sentences in that affidavit described Officer Waters' search of the car's trunk and the rifle he observed inside. After he obtained a search warrant, Detective Evans recovered a military assault rifle and ammunition from the trunk of Norman's car.
Devennice was charged with one count of kidnapping in the first degree, one count of assault in the second degree, and one count of attempted robbery in the first degree. Each count had a weapon enhancement associated with it.
At trial, Devennice moved to suppress the weapons found during the search of Norman's car. The trial court denied this motion. The jury found Devennice guilty of assault and attempted robbery, and found that he was armed with a deadly weapon during the assault, and with a firearm during the attempted robbery. After the verdict, Devennice filed a motion for arrest of judgment, and he joined in Norman's motion to dismiss for lack of evidence. At sentencing, Gaines renewed his motion to dismiss the weapon enhancements for insufficient evidence and lack of a sufficient nexus. The court denied all of these motions.
For the assault charge, the court sentenced Devennice to 63 months, with a 12 month enhancement. For the attempted robbery charge, Gaines received an 84 month sentence, with a 36 month enhancement.
DECISION 1. Motion to suppress
Devennice assigns error to the trial court's denial of his CrR 3.6 motion to suppress the evidence recovered from Norman's car. He argues that Officer Waters' warrantless search of the trunk was unreasonable and without authority of law because there were no exigent circumstances to justify the search. Therefore, Devennice argues, the search was illegal and the trial court erred when it ruled the search valid. We disagree.
The record shows clearly that the trial court did not admit the evidence from the trunk based on the exigent circumstances exception to the warrant requirement; rather, it admitted the evidence based on the inevitable discovery doctrine. The trial court reasoned that even if the improper reference to the assault rifle in the search warrant affidavit were disregarded, the remaining information in the affidavit would have more than justified the issuance of a warrant. Thus, the court concluded, the rifle would inevitably have been discovered during the search of Norman's car.
Warrantless searches are per se unreasonable, and the fruits of a warrantless search are ordinarily suppressed under the exclusionary rule. An exception to the exclusionary rule applies if the State can prove "by a preponderance of the evidence that the evidence ultimately or inevitably would have been discovered using lawful procedures." In addition, the State must show that the police did not act unreasonably or attempt to accelerate discovery. This test is satisfied only by showing that "the legal means of obtaining the evidence would have been 'truly independent' and the discovery by those means would have been 'truly inevitable.'"
State v. Hendrickson, 129 Wn.2d 61, 70-71, 917 P.2d 563 (1996); State v. Avila-Avina, 99 Wn. App. 9, 18, 991 P.2d 720 (2000).
State v. O'Neill, 148 Wn.2d 564, 591, 62 P.3d 489 (2003) (citing Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)).
State v. Richman, 85 Wn. App. 568, 577, 933 P.2d 1088 (1997).
Avila-Avina, 99 Wn. App. at 18 (quoting United States v. Silvestri, 787 F.2d 736, 744 (1st Cir. 1986)).
The State argues that discovery was inevitable because the police requested a search warrant to recover corroborating evidence from all three primary locations Hanson had been held during the crime Arletta's house, the SeaTac house, and Norman's car. To show that the use of lawful procedures would have inevitably resulted in discovery of the rifle, the State relies primarily on the facts of the case and the affidavit for the warrant to search Norman's car. Evidence sought in the warrant included hair, blood, and skin samples, as well as the weapons used in the assault the steel bar and the revolver.
While the record does not contain any description of the precise procedures the police were following in their investigation, we nevertheless conclude that the discovery of the assault rifle was inevitable given the nature of the crimes Hanson reported. Hanson told police that two weapons were used against him and that he spent a substantial amount of time captive in Norman's car during the crime. The State's evidence leaves no doubt that the police would have searched Norman's car, including the trunk, to look for evidence of these crimes, even if the trunk had never been opened at the time of the arrest. We agree with the trial court's reasoning, and Devennice fails to argue why it was improper to admit the evidence under the inevitable discovery doctrine.
Incidentally, we note that Devennice's argument fails to address the pistol recovered from Norman's car. To the extent his first assignment of error included a challenge to the admission of this pistol into evidence, we deem it to be abandoned, and we will not consider it.
RAP 10.3; Pappas v. Hershberger, 85 Wn.2d 152, 153, 530 P.2d 642 (1975).
2. Sufficiency of the evidence
Devennice next argues that there was insufficient evidence to support his convictions and the weapon enhancements. [AB 13-19] A challenge to the sufficiency of the evidence admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. We must determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.'
State v. Knowles, 46 Wn. App. 426, 429, 730 P.2d 738 (1986).
State v. Gentry, 125 Wn.2d 570, 596-97, 888 P.2d 1105 (1995).
a. Assault in the second degree
To convict Devennice of assault in the second degree, the State had to prove that Devennice either intentionally assaulted Hanson with a deadly weapon or recklessly inflicted substantial bodily harm. Hanson testified that Devennice hit him at least ten times with 'a steel rod probably 3/8ths of an inch thick, about maybe eighteen to twenty-four inches long.'
RCW 9A.36.021(1)(a), (c).
Report of Proceedings at 431.
An item is a deadly weapon if, under the circumstances in which it is used, it is readily capable of causing death or substantial bodily harm. Because Devennice hit Hanson on the head with the steel rod, the jury could have reasonably found beyond a reasonable doubt that the steel rod was a deadly weapon. Moreover, given the repeated blows that Devennice inflicted on Hanson, the jury could have reasonably found beyond a reasonable doubt that his conduct was intentional.
Although Devennice argues that '[t]here was no evidence presented that established the existence of a weapon,' this is simply untrue. Devennice admits in his own statement of facts that Hanson testified that Devennice beat him with a steel pipe. We hold that there was sufficient evidence to support both the conviction for assault and the associated deadly weapon enhancement.
Brief of Appellant at 15-16.
b. Attempted robbery in the first degree
To convict Devennice of the crime of attempted robbery in the first degree, the State had to prove that he, or his accomplice, took a substantial step to commit the crime of robbery while he or an accomplice was armed with a deadly weapon. '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.' 'A person is an accomplice . . . 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.'
Hanson's testimony established that over the course of two days Devennice, Norman, and Leandre each aided one another in the attempt to rob Hanson. Devennice aided the attempt by driving Hanson to a bank to withdraw money, by assaulting Hanson with a deadly weapon when Hanson failed to withdraw money from the bank, and by discussing with Norman and Leandre the money that Hanson was supposed to obtain for them. Hanson's testimony also established that Leandre, Devennice's accomplice, threatened Hanson with force from a deadly weapon namely, being shot in the head by the revolver in Leandre's waistband if Hanson failed to withdraw the money they wanted.
Although Devennice cites State v. Amezola for the proposition that the mere performance of domestic tasks is not sufficient to establish accomplice liability, that case is inapposite here. Devennice's conduct relative to Norman and Leandre's was not as innocuous as the performance of domestic tasks. Rather, Devennice's conduct substantially assisted the other men in attempting to rob Hanson. Furthermore, for purposes of the robbery charge and the firearm enhancement, it is irrelevant whether Devennice knew that Leandre had a revolver in his waistband or that Leandre threatened to shoot Hanson unless he withdrew money for them.
49 Wn. App. 78, 89-90, 741 P.2d 1024 (1987).
State v. Bilal, 54 Wn. App. 778, 782-83, 776 P.2d 153 (1989).
We therefore hold that the evidence was also sufficient to support the conviction for attempted robbery and the associated firearm enhancement, and to show a close nexus between the firearm and the crime.
3. Equal protection
Devennice further argues that his sentence violated his right to equal protection under both the United States and Washington Constitutions. The gravamen of his argument is that it was unjust and unfair for Devennice to receive a sentence of 132 months while his co-defendant Leandre received only 12- and 14-month concurrent sentences. To successfully challenge a sentence based on equal protection, a defendant must first establish that he is either (a) 'similarly situated with another defendant by virtue of near identical participation in the same set of criminal circumstances,' or (b) 'a member of a suspect class and can establish that he or she received disparate treatment because of that membership, i.e., that there was intentional or purposeful discrimination.'
State v. Handley, 115 Wn.2d 275, 290-91, 796 P.2d 1266 (1990).
Here, Devennice does not assert that he was the victim of intentional or purposeful discrimination based on his membership in a suspect class, so only the first threshold test from Handley is at issue. But as to that first test, Devennice only states in conclusory fashion that 'all of the defendants were of the same class.' He offers no reasoning whatsoever to support this conclusion.
Brief of Appellant at 20.
In fact, the record shows that Devennice's participation in the attempted robbery of Hanson was not 'nearly identical' with Leandre's, but exceeded Leandre's participation both in degree and duration. Because Devennice fails to satisfy either of the threshold tests identified in Handley, we have no cause to apply equal protection scrutiny to his sentence.
4. Additional grounds for review
Devennice presents three additional grounds for review under RAP 10.10, but we conclude that none has merit. First, Devennice contends that the trial court should not have imposed a firearm enhancement to his sentence for first degree attempted robbery because using a firearm is "an element of the offense" under State v. Brown. Devennice reads Brown incorrectly. The issue decided in Brown was that mandatory weapon enhancements set forth in former RCW 9.94A.310 may not be reduced by a sentencing judge under the exceptional sentence provisions of former RCW 9.94A.120(2). The reason for remanding for resentencing on the defendant's second degree assault charge was not to eliminate the deadly weapon enhancement, but rather to reinstate the entire enhancement, which had been erroneously reduced by the trial court.
139 Wn.2d 20, 25, 983 P.2d 608 (1999).
Brown, 139 Wn.2d at 29.
Second, Devennice challenges the sufficiency of the evidence supporting his conviction for first degree attempted robbery. He focuses on the fact that there was no testimony that he ever threatened Hanson, and that only Leandre showed Hanson the revolver (outside of Devennice's presence) during the robbery. This argument ignores the fact that the State relied on the theory of accomplice liability to convict him of attempted robbery. As stated above, the State did not need to prove that Devennice handled a weapon or even knew about Leandre's display of the revolver, nor did the State need to prove that Devennice threatened Hanson or knew that Leandre or Norman did so. The State presented sufficient evidence showing that Devennice was liable as an accomplice to the attempted robbery of Hanson. For this reason, Devennice's third additional ground for review insufficient evidence to sustain accomplice liability also fails.
The cases that Devennice cites to the contrary, State v. Plakke, 31 Wn. App. 262, 639 P.2d 796 (1982), and State v. Papadopoulous, 34 Wn. App. 397, 662 P.2d 59 (1983), are no longer good law. State v. Davis, 101 Wn.2d 654, 658-59, 682 P.2d 883 (1984).
We affirm.
SCHINDLER and COX, JJ., concur.