Opinion
No. 33657-0-II.
November 14, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-00934-1, Brian M. Tollefson, J., entered August 5, 2005.
Counsel for Appellant(s), Stephanie C Cunningham, Attorney at Law, Seattle, WA.
Counsel for Respondent(s), Todd Andrew Campbell, Pierce Co Pros Attorneys Ofc, Tacoma, WA.
Affirmed by unpublished opinion per Van Deren, J., concurred in by Houghton, C.J.; Quinn-Brintnall, J., concurring in the result only.
Woody James Madsen appeals the deadly weapon enhancements he received on his convictions of first degree robbery and first degree burglary and his sentence. He argues that the evidence did not support the enhancements and that the trial court erred when it found that the robbery and burglary were not same criminal conduct for purposes of calculating his offender score. We affirm.
FACTS
The State charged Madsen by amended information with first degree robbery and first degree burglary. The State further alleged that Madsen was armed with a deadly weapon, a flashlight, during the commission of the crimes.
At trial, Richard Stroupe testified that at approximately 11:00 am on February 22, 2005, he was sleeping when he heard his bedroom door open and someone enter his bedroom. When he heard someone "fiddl[ing]" with items on his nightstand, he rolled over to see Madsen, who he had never seen before, standing about four feet from his bed. 3 Report of Proceedings (RP) at 116. Madsen looked at him, exclaimed "Oh, shit," and ran out of the bedroom. 3 RP at 117.
Stroupe chased Madsen down the hall and tackled him. Stroupe landed on his back with Madsen on top of him. Madsen then kneeled across Stroupe's midsection, picked up a "very big flashlight," and "started trying to bash [him] in the head with it, screaming, `I'm going to kill you' and other random threats like that." 3 RP at 118. Stroupe testified that he attempted to fend off the blows, but Madsen still managed to hit him a couple of times on top of his head.
Stroupe described the flashlight to the jury as follows: "The flashlight probably has about a ten-inch lens, it tapers back, and then it's got a square back side that's probably five inches by like eight inches. It's rather large. It has a handle on it and the little leg it sits on." 3 RP at 118. He estimated that it was approximately fourteen inches long and that it weighed approximately eight pounds. A later witness described the flashlight as a "Thor-x 10,000 candle watt power flashlight." 5 RP at 217. The trial court admitted the flashlight as plaintiff's exhibit 26 without objection.
After Stroupe managed to "squirm out from underneath" Madsen, the two men continued to struggle with each other. 3 RP at 120-21. During these struggles, Madsen grabbed a beer bottle and a dowel. When Madsen "drew back with" the dowel, they struggled over it and Stroupe eventually got control of it and hit Madsen across the back. 3 RP at 121. They then stopped fighting. Stroupe ordered Madsen out of the house and Madsen started to walk away. When it occurred to Stroupe that Madsen may have taken something from the house and should be arrested, Stroupe followed him.
As Stroupe pursued Madsen, he told some nearby children to call the police. When he caught up with Madsen, the two struggled again. Stroupe testified that at some point Madsen also threatened to stab him with a knife. Eventually, Madsen threatened Stroupe with a board and Stroupe gave him a head butt in the face. The police arrived a short time later.
Pierce County Deputy Sheriff Anthony Filing testified that when he arrived at the scene the two men had already separated. Both had facial injuries and Madsen's nose was bleeding. Deputy Filing advised Madsen of his Miranda rights and questioned him. Madsen stated that his home had recently been burglarized and that when he walked by Stroupe's house and noticed that the door was open, he "decided to walk up and enter the residence to ask whoever lived there if they knew anything about the burglary." 3 RP at 89. He asserted that the next thing he knew, someone came down the hallway and attacked him with a large wooden dowel pin and then chased him around the neighborhood. Deputy Filing arrested Madsen.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The trial court found at an earlier suppression hearing that Madsen had voluntarily waived his Miranda rights.
During a search incident to arrest, Deputy Filing found three digital versatile disc (DVD) movies inside Madsen's shirt, a lot of loose change, and some paper currency in his coat pockets. Madsen told him that he put the DVDs in his shirt to protect himself when Stroupe was hitting him and that the money was his. Stroupe later identified these items as coming from his house.
Deputy Filing further testified that medical aid personnel examined both Madsen and Stroupe at the scene. Madsen was taken to the hospital to be evaluated before the deputies took him to jail. Stroupe declined to be taken to the hospital.
At trial, Madsen presented testimony suggesting that before the incident a safe may have been stolen from his trailer.
The jury convicted Madsen on both counts and, by special verdict, found that he was armed with a deadly weapon at the time of the crimes.
At sentencing, Madsen asked the trial court to find that the burglary and the robbery were the same criminal conduct. The State conceded "for the sake of sentencing" that the two offenses could be the same criminal conduct, but argued that the trial court should apply the burglary anti-merger statute and find that the two offenses were separate and distinct offenses. RP (8/5/2005) at 2.
The trial court refused to apply the burglary anti-merger statute but found that the two offenses were not the same criminal conduct. It issued the following written finding that stated in part:
The defendant was found guilty by jury verdict of Robbery First Degree and Burglary First Degree. Based on the testimony at the trial of victim, Richard Stroupe, the court makes a finding that the defendant acted with different intents, different actions, and different conduct in committing each offense separately. Therefore, it is the ruling of the court that the two offenses encompass separate and distinct criminal conduct.
Clerk's Papers (CP) at 67.
Madsen appeals the deadly weapon enhancements and the trial court's determination that the offenses were not the same criminal conduct.
Discussion I. Sufficiency
Madsen argues that the evidence was insufficient to prove that the flashlight was a deadly weapon for purposes of the deadly weapon enhancement. We disagree.
Evidence is sufficient to support an enhancement if, when viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). And we must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533.
The trial court instructed the jury that for purposes of the special verdicts, a deadly weapon was "an implement or instrument which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death." CP 56-57; see also
The State relies on Instruction 12, which defines the term deadly weapon for the first degree robbery charge. See CP at 27. Instructions 37 and 38 define the term deadly weapon for the special verdicts, so they are the relevant instructions here.
RCW 9.94A.602. It further instructed that: The following instruments are examples of deadly weapons: blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any dirk, dagger, pistol, revolver or any other firearm, any knife having a blade longer than three inches, any razor with an unguarded blade, and any metal pipe or bar used or intended to be used as a club, any explosive, and any weapon containing poisonous or injurious gas.
RCW 9.94A.602 provides:
[A]n implement or instrument which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death. The following instruments are included in the term deadly weapon: Blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any dirk, dagger, pistol, revolver, or any other firearm, any knife having a blade longer than three inches, any razor with an unguarded blade, any metal pipe or bar used or intended to be used as a club, any explosive, and any weapon containing poisonous or injurious gas.
CP at 56-57.
Neither party presented any evidence suggesting that the flashlight was one of the specific items listed. Thus, the jury had to find beyond a reasonable doubt that the flashlight had the capacity to inflict death and from the manner in which it was used, was likely to produce or could have easily produced death.
The evidence taken in the light most favorable to the State shows that Madsen pinned Stroupe down and repeatedly struck him and attempted to strike him in the head with a large flashlight while screaming that he intended to kill him. Given the size and weight of the flashlight, Madsen's position in being on top of Stroupe, the fact he attempted to and did strike Stroupe in the head, and his stated intent, there was sufficient evidence to allow the jury to find that the flashlight had the capacity to inflict death and was likely to or could have easily and readily done so. See State v. Barragan, 102 Wn. App. 754, 9 P.3d 942 (2000) (factors relevant to determining whether the object constituted a deadly weapon include the area of the victim's body targeted, the degree of force used, the defendant's stated intent, and the injuries actually inflicted). The fact Stroupe was strong enough to successfully defend himself, although relevant to the degree of force Madsen was able to use, also explained the lack of significant injury and is not determinative here in light of the other factors. Accordingly, this argument fails.
II. Same Criminal Conduct
Madsen next argues that the trial court erred when it found that the burglary and the robbery were not the same criminal conduct. He asserts that the two offenses occurred at the same place and time, against the same victim, and involved the same overarching intent. This argument also fails.
The trial court may consider two or more offenses to be same criminal conduct for purposes of sentencing if the offenses (1) involved the same criminal intent; (2) occurred at the same time and place; and (3) involved the same victim. RCW 9.94A.589(1)(a). We must narrowly construe the statutory language to disallow most assertions of same criminal conduct. State v. Price, 103 Wn. App. 845, 855, 14 P.3d 841 (2000) (citing State v. Palmer, 95 Wn. App. 187, 190-91, 975 P.2d 1038 (1999)). We review a trial court's same criminal conduct determination for abuse of discretion or misapplication of the law. Price, 103 Wn. App. at 855 (citing State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000)).
Here, the two offenses involved the same victim and occurred at the same place and time. Thus, the issue is whether the offenses involved the same criminal intent. The standard for determining whether two offenses involved the same criminal intent is the extent to which the criminal intent, viewed objectively, changed from one crime to the next. State v. Lessley, 118 Wn.2d 773, 777, 827 P.2d 996 (1992). The fact that one crime furthered commission of the other may indicate the presence of the same intent. Lessley, 118 Wn.2d at 777.
Madsen argues that he committed the robbery and burglary with the same overarching criminal intent, intent to commit theft. But when Madsen entered Stroupe's residence with the intent to commit theft, his objective intent of committing burglary was complete. Lessley, 118 Wn.2d at 778. Objectively viewed, his criminal intent then changed from burglary with intent to commit theft to robbery when Stroupe confronted and attempted to restrain him. Lessley, 118 Wn.2d at 778. The robbery could not further the burglary because the burglary was complete by the time Madsen committed the robbery. Given our deferential standard of review, this supports the trial court's decision, and Madsen's argument fails.
Madsen relies on State v. Rienks, 46 Wn. App. 537, 731 P.2d 1116 (1987), remanded, 110 Wn.2d 1021 (1988) in which the defendant was convicted of first degree assault, first degree burglary, first degree robbery, and second degree assault. Rienks, 46 Wn. App. at 538. All four offenses related to an attempt by the defendant to collect a debt owed to a third person. Rienks, 46 Wn. App. at 539. The sentencing court found that the first degree burglary and first degree robbery were the same criminal conduct for purposes of calculating the defendant's offender score, a determination not challenged by the State on appeal. Rienks, 46 Wn. App. at 539. On appeal, the defendant successfully argued that the first degree assault encompassed the same criminal conduct as the first degree robbery. Rienks, 46 Wn. App. at 540. Unlike here, the defendant in Rienks intended to confront and threaten the victims at the time he entered the victim's residence, he did not initially enter intending to commit theft. Accordingly, Rienks is inapposite.
Accordingly, we affirm.
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, C.J., concur.
QUINN-BRINTNALL, J., concur in the result.