Opinion
No. 24282-0-III.
May 17, 2007.
Appeal from a judgment of the Superior Court for Yakima County, No. 04-1-02724-7, Michael E. Schwab, J., entered June 10, 2005.
Affirmed by unpublished opinion per Kulik, J., concurred in by Schultheis, A.C.J., and Kato, J. Pro Tem.
A jury acquitted Clayton Brice Long of first degree burglary and second degree robbery, but convicted him of two counts of first degree robbery. The charges arose from a home invasion where most of the perpetrators wore masks. Mr. Long challenges his convictions claiming there was insufficient evidence to prove that he was one of the masked men involved in the robbery. He also argues that his convictions for first degree robbery were inconsistent with the acquittals. At trial, one of the masked men told police that Mr. Long participated in the robbery and then testified about the similarity of Mr. Long to the man who was with him during the robbery. A rational trier of fact could have found Mr. Long guilty beyond a reasonable doubt. And acquittals on some charges do not necessarily require reversal of convictions on other charges. Here, the convictions are independently supported by sufficient evidence. We affirm.
FACTS
On October 8, 2004, Linda Cantu, Sabrina Cantu, and Laura Tussler were inside the Cantu camp trailer which was parked on property in Yakima County, Washington. Shortly after midnight, Linda Cantu heard a vehicle drive up to the trailer. When no one came to the door, Linda Cantu went outside to see who was there. She saw six to eight people getting out of a Bronco and a second vehicle. She went back into the trailer when she saw that they were carrying guns and rifles. Inside the trailer, Linda Cantu looked for her shotgun, but could not find it. All three women went outside.
Linda Cantu asked the intruders what they wanted and they replied that they were looking for her husband and another man. Three of the men started pushing Linda Cantu into the trailer. Two of these men wore masks, the third man wore a baseball cap instead of a mask and had goldish-blond hair.
Inside the trailer, the man without the mask, who was later identified as Joseph Metsker, put a gun to Linda Cantu's head. Another man stated that she would be killed if she did not shut her mouth and give them what they wanted.
Linda Cantu went to her bed and sat down. The third man came and placed duct tape around her hands, mouth, and head. Linda Cantu testified that this man was 51 to 52 in height. She could not describe his weight or build because he was wearing a bulky sweatshirt. Sabrina Cantu described this man as 53 in height, skinny, and weighing 135 pounds.
The three intruders tore the inside of the trailer apart looking for guns, drugs, money, or anything else of value. They went through the women's purses. The intruders took money, jewelry, drugs, and cell phones. From Sabrina Cantu they took a cell phone, jewelry, a wallet, and $50. When the intruders left, Sabrina Cantu ran next door to her grandparent's house and called the police.
At trial, Joseph Metsker testified that Bobby Gatlin invited Mr. Metsker to go with Mr. Gatlin and Clayton Long to the Cantu residence. Mr. Metsker observed Mr. Long get into Mr. Gatlin's Bronco. Mr. Metsker rode in another car.
On the way to the Cantu trailer, the two vehicles stopped along the side of the road. Mr. Metsker was the only one to get out of the car. Mr. Metsker went over and spoke with Mr. Gatlin. At that point, Mr. Metsker was paying attention only to Mr. Gatlin. Mr. Gatlin told Mr. Metsker that they were going to do a home invasion. Everyone but Mr. Metsker put on a mask. Mr. Gatlin gave Mr. Metsker a firearm. Mr. Gatlin carried a sawed-off shotgun.
Mr. Metsker testified that one man carried duct tape into the Cantu trailer. Mr. Metsker testified that this person was 53 in height and of a thin build. Mr. Metsker stated that Mr. Long was the same height as the person who bound and gagged Linda Cantu with duct tape, and that no one else the same height got into the Bronco that night to go to the Cantu residence. Mr. Metsker also gave a statement to police stating that Mr. Long was the one in the trailer who had the duct tape.
The jury convicted Mr. Long of the first degree robbery of Linda Cantu and the first degree robbery of Sabrina Cantu. The jury also found that Mr. Long, or an accomplice, was armed with a firearm at the time the offenses were committed.
ANALYSIS
Sufficient Evidence Supports Mr. Long's Robbery Convictions.
When reviewing a challenge to the sufficiency of the evidence, this court considers, by viewing the evidence in the light most favorable to the State, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). A challenge to the sufficiency of the evidence admits the truth of the State's evidence and all reasonable inferences therefrom. State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254 (1980).
The evidence showed that Mr. Long rode to the Cantu trailer in Mr. Gatlin's Bronco and that he was wearing a mask when he got out of the vehicle. Once at the Cantu trailer, Mr. Gatlin, Mr. Metsker, and Mr. Long confronted Linda Cantu and forced her at gunpoint into the trailer. Mr. Long then bound and gagged Linda Cantu with duct tape while the other men ransacked the trailer, taking jewelry, money, drugs, and cell phones. In the presence of Sabrina Cantu, the men took her cell phone, jewelry, and a wallet containing $50. The men used firearms and threats to kill to overcome any resistance. The evidence is sufficient to support the robbery convictions.
Under RCW 9A.56.200:
(1) A person is guilty of robbery in the first degree if:
(a) In the commission of a robbery or of immediate flight therefrom, he or she:
(i) Is armed with a deadly weapon; or
(ii) Displays what appears to be a firearm or other deadly weapon; or
(iii) Inflicts bodily injury.
The Verdicts Are Not Inconsistent.
Inconsistent verdicts are the result of several factors including mistake, compromise, and lenity. Dunn v. United States, 284 U.S. 390, 393-94, 52 S. Ct. 189, 76 L. Ed. 356 (1932). In Washington, even irreconcilable verdicts do not necessitate reversal. State v. Wai-Chiu Tony Ng, 110 Wn.2d 32, 48, 750 P.2d 632 (1988). An adequate safeguard is provided by a court's independent review of the sufficiency of the evidence. United States v. Powell, 469 U.S. 57, 67-68, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984).
Even if we assume that the robbery convictions are inconsistent with the acquittal on the burglary charge, reversal is not required if Mr. Long's robbery convictions are supported by sufficient evidence. Because this determination has already been made, we affirm.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Mr. Long filed a statement of additional grounds for review. He contends: (1) the court erred by exceeding the statutory maximum sentence for both offenses when adding the community custody and the firearm enhancements; (2) his double jeopardy rights were violated when he was charged for a crime which is only committed by using a firearm but was given an enhancement for using a firearm; (3) his constitutional rights were violated because the jury instructions were ambiguous; and (4) his counsel was ineffective at trial. Sentencing . Mr. Long contends the court erred when imposing his sentence. Mr. Long is mistaken. The standard range is not the same as the maximum sentence. First degree robbery is a class A felony. RCW 9A.56.200(2). The maximum sentence for a class A felony is life imprisonment. RCW 9A.20.021(1)(a). The standard range for Mr. Long was 77 to 102 months. RCW 9.94A.510. The court did not err when imposing his sentence.
Jury Instructions . A jury instruction is sufficient if it is not misleading and correctly states the law, and permits counsel to argue his or her theory of the case. State v. Mark, 94 Wn.2d 520, 526, 618 P.2d 73 (1980).
Mr. Long first objects to jury instruction 22 which states that "[p]roperty means anything of value." Clerk's Papers at 66. This instruction is the same as Washington Pattern Jury Instruction: Criminal (WPIC) 2.21. This instruction is also the same as the definition of property contained in RCW 9A.04.110(22). Mr. Long argues that the terms "actual," "constructive," "custody," and "possession" should have been included in the definition to explain the various aspects of property. But Mr. Long does not explain how jury instruction 22 is contrary to law or how the instruction failed to permit counsel to argue his theory of the case.
11 Washington Pattern Jury Instructions: Criminal 2.21, at 53 (2d ed. 1994).
Mr. Long next challenges jury instruction 15 which sets forth the definition of the term "robbery." This instruction is the same as WPIC 37.01 and RCW 9A.56.190.
Again, Mr. Long does not explain how this instruction is contrary to law or how this definition failed to permit his counsel to argue his theory of the case.
Mr. Long challenges jury instructions 17 and 18, which are the "to convict" instructions for the two counts of robbery. Mr. Long objects to the inclusion of the word "property" in these instructions given that the definition of "property" is misleading. But the definition of "property" used here is correct.
Finally, Mr. Long contends the burden of proof was shifted because the State did not have to prove who was in possession of the property. Mr. Long has misread jury instructions 17 and 18. There was no shift in the burden of proof. The trial court committed no error by giving these instructions.
Ineffective Assistance of Counsel . To prove ineffective assistance of counsel, Mr. Long must demonstrate (1) deficient representation, and (2) resulting prejudice so that there was a reasonable probability that, except for the ineffective representation, the result of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). There is a strong presumption that counsel's representation was effective. Id. at 335. Defense counsel's legitimate strategy or tactics cannot be the basis for a claim of ineffective assistance of counsel. State v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994).
Mr. Long contends his counsel was ineffective because he failed to challenge the admission of propensity evidence. He maintains that propensity evidence is an improper basis for a conviction.
At trial, there was testimony about an attempt on Mr. Metsker's life. A few weeks after the incident at the Cantu trailer, Mr. Metsker was taken from a motel at gunpoint. He was beaten with a stick and his throat was cut. Mr. Metsker testified that he told police that Mr. Long was present at the assault, but that he was wrong. Mr. Metsker assumed that everyone who was involved in the home invasion was also involved in the assault. Mr. Metsker agreed when defense counsel pointed out that it was an effective technique to protect himself by naming everyone else even though he was not entirely sure who was responsible for the assault.
Mr. Long's counsel was not ineffective. Mr. Metsker's testimony about the attempt on his life cast doubt on his identification of Mr. Long at the home invasion. Defense counsel's decision not to challenge this testimony was a legitimate trial tactic.
Double Jeopardy . Mr. Long argues that the weapon enhancement for first degree robbery results in double punishment and double jeopardy because an element of robbery in the first degree is use of a deadly weapon. This argument has been rejected. State v. Caldwell, 47 Wn. App. 317, 320-21, 734 P.2d 542 (1987). If a person commits certain crimes while armed with a deadly weapon, he or she will receive an enhanced sentence, despite the fact that being armed with a deadly weapon is an element of the crime of robbery in the first degree. Id. Double jeopardy only prevents greater punishment for a single offense than the legislature intended, not enhanced sentences. State v. Pentland, 43 Wn. App. 808, 811, 719 P.2d 605 (1986). The enhancement of Mr. Long's first degree robbery convictions does not violate double jeopardy.
We affirm.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Kulik, J.
WE CONCUR:
Schultheis, A.C.J.
Kato, J. Pro Tem.