Opinion
Nos. 36182-5-II, 36210-4-II.
April 8, 2008.
Appeals from a judgment of the Superior Court for Pierce County, No. 06-1-04524-8, Lisa R. Worswick, J., entered April 13, 2007.
Affirmed in part and remanded by unpublished opinion per Penoyar, J., concurred in by Van Deren, A.C.J., and Quinn-Brintnall, J.
After a bench trial, the court convicted Tiki Taru McCollum and Antonio Ricardo Cross of second degree robbery and fourth degree assault for taking Vcete Lemus Zuniga's vehicle from a convenience store parking lot by force. McCollum appeals his conviction on the basis that there was insufficient evidence to support a finding of force, a necessary element of second degree robbery. Cross does not appeal his convictions, but seeks remand to the trial court for resentencing and credit for time served. The evidence supports the trial court's findings of force. Thus, we affirm McCollum's conviction. We remand to the trial court to clarify an ambiguity in Cross's sentence and to credit him with time served.
FACTS
On September 22, 2006, shortly before 11:00 p.m., Vcete Lemus Zuniga ("Lemus") Felipe Zuniga Zuniga ("Zuniga") and Ciro Castillo were parked in a car at the AM/PM convenience store located at 8247 Pacific Avenue, in Tacoma. Lemus, the owner of the car, was sitting in the driver's seat. Castillo was sitting in the front passenger seat and Zuniga was in the back seat.
Although some dispute exists as to the correct spelling of Lemus Zuniga's first name, he spelled his name "V-C-E-T-E" during his testimony. 3 RP at 154.
While at the AM/PM, Lemus spoke briefly with Raechel Evans, a prostitute with whom he was acquainted. Lemus inquired about purchasing acts of sex, but no agreement was made. Evans left after a short while and phoned McCollum. Evans testified that she called McCollum because he knew other ladies who could "possibly aid" Lemus and his passengers. 6 Report of Proceedings (RP) at 462.
Shortly after the phone call, McCollum and his companion, Cross, approached Lemus's car. They climbed into the car's back seat without the occupants' permission. They positioned themselves on either side of Zuniga. The two groups of men did not know each other.
At trial, Lemus stated that McCollum and Cross spoke to the men inside the vehicle, but that a language barrier prevented Lemus from understanding everything they said. Lemus and his passengers speak Spanish, and McCollum and Cross speak English. Lemus understood that McCollum and Cross told him to "start" or "move" the car. 3 RP at 161-62, 175. Rather than doing so, Lemus exited the car and told his passengers to do the same. Although McCollum and Cross never told Lemus or the other men to exit the vehicle, Lemus stated that he felt "bad" when Page 3 the two men entered the vehicle and that he felt threatened by the men's presence. 3 RP at 161, 175. Lemus, however, could not see whether the men carried guns or other weapons. Immediately after Lemus, Zuniga and Castillo exited the vehicle, McCollum and Cross drove away. Afterwards, Zuniga told Lemus that the men had "something" with them, possibly referring to a weapon, which made Zuniga fear for his safety. 3 RP at 172.
Zuniga testified that he was "surprised" when the first man entered the car. 3 RP at 219. Zuniga identified McCollum as the first to enter the vehicle. Zuniga testified that McCollum made a gesture to force Zuniga to look down at McCollum's jacket. He testified that McCollum had something "under his jacket," which scared Zuniga. 3 RP at 227. Although it was "pretty dark" in the vehicle, Zuniga said the object in the jacket appeared to be "some kind of weapon" and that he "saw the point of [a] weapon." 3 RP at 228, 237. However, Zuniga's testimony about whether the weapon in question was a gun was unclear. On direct examination, he stated that he did not know if the "point" of the weapon was, in fact, the barrel of a gun. 3 RP at 237. Later on cross-examination, however, he stated that the weapon "looked like a gun." 4 RP at 272. Ultimately, the trial court concluded that the State did not prove that either McCollum or Cross possessed a gun or knife during the incident.
According to Zuniga, McCollum said some things in a "very, very low" voice. 3 RP at 221. When Cross entered the vehicle, he spoke "more aggressively." 3 RP at 221.
After a bench trial, the court found McCollum and Cross guilty of second degree robbery and fourth degree assault. The court also found McCollum guilty on four counts of second degree possession of stolen property, which related to four credit cards found in McCollum's possession at the time of his arrest.
The judgment and sentence for the assault conviction incorrectly states that each man pled guilty. The judgment and sentence for the robbery conviction correctly states that each defendant was found guilty at a bench trial.
In this appeal, McCollum challenges the sufficiency of the evidence related to the robbery conviction. He does not appeal the assault or possession of stolen property convictions. Cross does not appeal the robbery or assault convictions; rather, he requests a remand to the trial court so that it may credit him for time served and designate the length of his probationary period on the assault conviction.
ANALYSIS
I. Challenged Findings of Fact
We examine challenged findings of fact to determine whether they are supported by substantial evidence. State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002). Substantial evidence is evidence that is sufficient to persuade a rational, fair-minded person of the truth of the finding. State v. Foster, 135 Wn.2d 441, 471, 957 P.2d 712 (1998).
McCollum challenges findings of facts 7, 8 and 12. These are the only findings that make reference to the threatening, fear-inducing nature of McCollum's and Cross's conduct. The findings read:
(7) The defendants were acting in a threatening and aggressive manner when they got into [Lemus's] car; defendant McCullom [sic] was talking low and showing what appeared to be a weapon and defendant Cross was acting agitated;
(8) Once in the car, defendant McCullom [sic] immediately told [Lemus] to drive off, which caused [Lemus] to reasonably fear that harm may come to him or his passengers;
. . . .
(12) Although the defendants' acts in taking the car were forceful, threatening and against the will of [Lemus] and his passengers, the State did not prove that either defendant possessed a gun or knife during the incident[.]
Cross's Clerk's Papers (CP I) at 13.
There are two sets of clerk's papers in this record. Cross's clerk's papers will be referred to as "CP I" and McCollum's clerk's papers will be referred to as "CP II".
These findings are supported by testimonial evidence that is sufficient to persuade a rational, fair-minded person of their truth, thereby satisfying the substantial evidence test. Zuniga testified that McCollum spoke in a low voice and that Cross behaved in a threatening and agitated manner. Additionally, Zuniga testified, albeit in a somewhat confused manner, that McCollum might have had a weapon. Moreover, both Zuniga and Lemus provided testimony that two men who were unknown to them approached the vehicle, got in without permission, and told Lemus to leave the scene while boxing in Zuniga in the backseat. Both Lemus and Zuniga stated that they felt threatened or scared by such behavior. A rational, fair-minded person may well view such actions as "threatening and aggressive" and "forceful, threatening and against the will" of Lemus and his passengers. Finally, there is substantial evidence to support the fact that McCollum told Lemus to drive away. A rational, fair-minded person could agree that such a demand caused Lemus to reasonably fear for his own and his passengers' safety. Thus, substantial evidence exists to support the challenged findings.
II. Sufficiency of Evidence for Robbery Conviction
The next issue we must resolve is whether the findings entered by the trial judge support a second degree robbery conviction.
In reviewing a criminal conviction, the test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). All reasonable inferences from the evidence must be drawn in the State's favor and interpreted most strongly against the defendant. Salinas, 119 Wn.2d at 201 (citing State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977)). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd in part, rev'd in part on other grounds, 95 Wn.2d 385, 622 P.2d 1240 (1980). 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) (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses and the persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75 (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).
A person is guilty of second degree robbery if he commits the crime of robbery. RCW 9A.56.210(1). A person commits robbery when:
[H]e 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.
RCW 9A.56.190 (emphasis added).
Any degree of force or threat of force that induces the owner to part with his property is sufficient to establish the element of taking by force or fear. See State v. Handburgh, 119 Wn.2d 284, 293, 830 P.2d 641 (1992). The element of force or fear is sufficiently established by threatening words or gestures that would, in common experience, create an apprehension of danger and induce a person to part with his property. State v. Collinsworth, 90 Wn. App. 546, 551, 966 P.2d 905 (1997) (citing State v. Redmond, 122 Wash. 392, 393, 210 P. 772 (1922)).
Any rational trier of fact confronted with the facts in this case could have found beyond a reasonable doubt that McCollum took Lemus's car by the use or threatened use of force. McCollum got in Lemus's car late at night without the permission of any of his passengers. None of the passengers knew McCollum. McCollum and his partner seated themselves on either side of the backseat passenger, an arrangement that a reasonable person might consider intimidating. Lemus testified that he felt afraid of the strangers who had entered his vehicle. His fear led him to get out of the car and request that his passengers do the same. Such action comports with the language in Handburgh, which states that "[a]ny force or threat, no matter how slight, which induces an owner to part with his property . . ." is sufficient to prove robbery. Handburgh, 119 Wn.2d at 293.
McCollum suggests that the State lacked sufficient evidence to prove the force or fear element of second degree robbery because Lemus had no knowledge about whether McCollum carried a weapon. Lemus testified that he never saw any weapon and never heard anyone mention a weapon. McCollum's argument fails, however, because the force element does not require the presence of a weapon. See Collinsworth, 90 Wn. App. at 551 (stating that "threatening by menace, word, or gesture" may support robbery conviction). A rational trier of fact could reasonably find force where two unknown men get into someone's vehicle, speak to him in an aggressive manner, and tell him to drive away.
McCollum also contends that there was only evidence of force being used against Zuniga, one of the vehicle's passengers, and not Lemus, the owner of the vehicle. McCollum argues that Zuniga could not be robbed as a matter of law since he had no ownership interest in Lemus's car. The trial court agreed with McCollum that Zuniga could not have been robbed as a matter of law, but also it found that McCollum used force against Lemus. The court stated:
I examined if Mr. Lemus was robbed in his own right. The evidence shows that he was.
Mr. McCollum and Mr. Cross, two people unknown to Mr. Lemus, [got] into the back seat of his car and [told] him to drive off. That is reasonable fear of harm to him. The testimony was that Mr. Cross was very agitated.
7 RP at 535.
We affirm McCollum's second degree robbery conviction.
III. Errors in Cross's Judgment and Sentence
Cross argues that the trial court erred by failing to set a definite probationary term for his misdemeanor assault conviction and by failing to credit him for time served on his assault conviction.
A. Suspended Sentence and Probation
Cross argues that the trial court erred in failing to set a definite probationary term for his misdemeanor assault conviction. From a review of the judgment and sentence, Cross asserts that it appears the trial court suspended his one-year term of confinement for fourth degree assault and imposed probation. The State argues that, notwithstanding a reference to a suspended sentence in the judgment and sentence and an entry of "conditions on suspended sentence," the trial court did not suspend or defer any jail time on Cross's misdemeanor sentence. Therefore, according to the State, the trial court did not impose probation.
The judgment and sentence states that the one-year sentence "shall be (suspended) on the attached conditions of (suspended) sentence." CP I at 33. However, the conditions on suspended sentence document indicates that no time was suspended on the one-year sentence, which runs concurrently with the 75-month sentence for robbery. The trial court's entry of judgment and sentence on the "suspended sentence" paperwork is likely a simple oversight, but given the ambiguity, we remand for correction. Thus, we remand to the trial court to clarify: (1) whether any part of the sentence is suspended, and (2) what probationary period, if any, Cross must serve. B. Credit for Time Served An accused individual must be credited with time served in detention prior to trial and sentence. See Reanier v. Smith, 83 Wn.2d 342, 346, 517 P.2d 949 (1974).
On page two of the "Conditions on Suspended Sentence," the court wrote, "365/0 suspended (concurrent w/ Ct. I)." CP I at 36.
Here, the trial court imposed a concurrent sentence for Cross's felony and misdemeanor convictions. While the felony judgment and sentence accurately reflected that Cross is entitled to 202-days credit for time served, the misdemeanor judgment and sentence failed to do so. The State concedes that Cross is entitled to time served on his misdemeanor assault conviction. Therefore, we remand to the trial court to correct this error.
IV. Statement of Additional Grounds
Finally, Cross filed a pro se statement of additional grounds (SAG). He makes numerous arguments in the SAG. We have carefully reviewed all of Cross's additional grounds and find merit in none of them.
The pages were not numbered so numbers have been imposed beginning after the cover page of the SAG. Claims contained in Cross's SAG: numerous references to determination of aggravating factors for sentencing; reversal required where "[h]elpful evidence is not presented to the Court but hidden" (SAG at 4); numerous references to the prejudice suffered by the Court allowing "[illegal aliens]" to testify against him; claims to have been prohibited from cross examining "[illegal aliens];" implication that his statements were either improperly used against him or were not voluntarily given; "why wasn't defendant given the Lesser included of the Crime of Robbery" (SAG at 5); "For the review where is the Video tape from the alleged victim or Store" (SAG at 5); bare assertion that the pretrial identification was improper; "[w]hen the Victim immigrant pointed at the Colored person who was 5 blocks away from the alleged crime seen . . . The police [immediately] told them they are under arrest because these People [identified] you" (SAG at 8); implication that the court produced evidence that was derived from an "unlawful invasion" (SAG at 8); "Mr. Antonio was denied access to a privilege in asking for the Police report . . . At trial he was denied evidence this violated his U.S.C.A. 14 amend." (SAG at 11); "Evidence is admissible for one purpose or against one party but is objectionable for other purposes or against other parties in Rule 103(a)(1)" (SAG at 11); violation of speedy trial rights; "Mistake on Indictment" (SAG at 14); bare assertion that the prosecutor and the defense attorney conspired to convict him (SAG at 15); claims that the prosecutor should be disbarred for using a "tampered 911 tape" (SAG at 17); "It is unethical to label the defendant as [incompetent] to stand trial" (SAG at 17); offers a new defense theory called the "reign of terror doctrine" whereby the prosecutor obtained evidence for the purpose of preparing for trial (SAG at 23); "Defendant History, Prior I'llegal Defense counsel's failure to inform the trial court of Mr. Quintero Morelo's Alien Status is Excusable neglect under Rule and Constitutes negligence sufficient to raise prejudicial error" (SAG at 23); the trial court erred by allowing the "Non Speaking english to rule over a Colored person of english background but lacks to ability to be represented by a fair public defender" (SAG at 23); bare assertion of prosecutorial misconduct; claims that "when the Spanish spoke in Court with interpreter the public defender lost the ability to represent Mr. Cross" (SAG at 24); claims reversal required because the prosecutor overheard Cross discussing "questions of United States Constitutional Magnitude" (SAG at 25); claims reversal required for the "Omission of materiality element from Jury instruction" (SAG at 25); alleges violations of right of confrontation and alleges "prosecutorial mismanagement" (SAG at 26); "How can a indictment be Valid when not signed" (SAG at 30); claims insufficient evidence to convict; claims to be a victim of "erroneous instruction" (SAG at 31).
We affirm McCollum's conviction.
We remand to the trial court to clarify an ambiguity in Cross's sentence and to credit him with time served.
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.
Van Deren, A.C.J., Quinn-Brintnall, J., concur.