Opinion
No. 53650-8-1
Filed: March 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-00610-2. Judgment or order under review. Date filed: 01/12/2004. Judge signing: Hon. George T. Mattson.
Counsel for Appellant(s), Jennifer K. Ryan Gilman, Barrett Gilman Ziker, 1000 2nd Ave Ste 3500, Seattle, WA 98104-1063.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Amy R. Holt, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Brandon Olebar was convicted of robbery in the first degree and burglary in the first degree. He appeals the robbery conviction. Because sufficient evidence supports the finding that Olebar participated in the robbery as an accomplice, we affirm.
FACTS
This case arose from a burglary and robbery at the home of Brian Vogelbacher. One or two weeks before those incidents occurred, Vogelbacher had broken up with Olebar's sister, Nacoel. Afterward, Nacoel called Vogelbacher several times a day, and appeared at his house uninvited. On the evening of February 26, 2004, at approximately 9 p.m., Nacoel rang Vogelbacher's doorbell. He refused to let her into the house, and they argued through the window for about 10 minutes. He noticed several people with Nacoel, among them Olebar and Olebar's uncle, Edward Loney. Vogelbacher had met Olebar briefly twice but had never met Loney and did not recognize the other individuals.
Loney ran to the front door and broke it down. Six to eight people, including Loney, Nacoel and Olebar, entered Vogelbacher's house. The intruders began beating him, and he was pistol-whipped by Loney and another individual he was unable to identify. At least two people were carrying guns. The others kicked and hit him repeatedly while he tried to shield his face. Vogelbacher testified that Olebar kicked and punched him, but was unable to say for how long. Passing in and out of consciousness, Vogelbacher started crawling toward his bedroom. He could hear people running around the house stealing things:
I ended up in my closet in my bedroom. And [Loney] was holding a gun to my face, telling me asking me things such as where's the money at.
. . . .
. . . [A] couple people would just, you know, hold a gun on me and kick me and stuff and just make sure that I was where I was at, while everybody else just kind of ran around and took all my stuff, took items.
Report of Proceedings (RP) (Oct. 23, 2003) at 158, 160.
Vogelbacher was unable to verify whether Olebar took anything from his home, although he did see Nacoel taking some items. Someone ripped his necklace from his neck, and a computer monitor, DVD player and other jewelry were stolen. Nacoel pulled Loney off Vogelbacher and they left. Vogelbacher estimated the entire incident took 10 to 15 minutes. Vogelbacher was treated in hospital for multiple concussions. Police processing Vogelbacher's home that night found a single unspent bullet on the kitchen counter. The next morning, Vogelbacher received a voicemail message from Nacoel. She boasted about having his necklace and told him she could have instructed the people with her to `do something more to you.' Id. at 198. She stated the attack was `about them and you hitting me.' Id. at 199.
Vogelbacher identified Olebar and Loney from photomontages as being among the people who had attacked him. After Nacoel left a second, very apologetic, voicemail message on Vogelbacher's cell phone, and agreed to meet him, the police arrested her, and found items stolen from Vogelbacher in her car. The remaining property (including DVDs, CDs, a stereo and jewelry) has not been recovered.
When Loney was arrested, he was armed. A tool mark expert matched the bullet found in Vogelbacher's home to Loney's gun. Loney and Olebar were tried jointly on charges of first degree robbery and first degree burglary while armed with a firearm. Olebar testified at trial that he was present during the crimes. Both were found guilty. Olebar appeals his robbery conviction.
DISCUSSION
The principal issue is whether there is sufficient evidence to convict Olebar of robbery in the first degree. Evidence is sufficient if viewed in the light most favorable to the State, a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). An insufficiency claim admits the truth of the State's evidence and all inferences that may reasonably be made from it. State v. Trout, Wn. App., 105 P.3d 69, 73 (2005) (citing Salinas, 119 Wn.2d at 201). If any rational trier of fact could have found the essential elements of the crime from the evidence, we will affirm. Id.
Olebar concedes the evidence supports his conviction for the burglary, but contends the evidence did not show he had the requisite knowledge or intent to be found guilty of robbery as either a principal or an accomplice. He argues there is no evidence he knew Loney intended to rob Vogelbacher, or that he assisted Loney in the robbery.
A person is guilty of robbery in the first degree if, `in the commission of a robbery or of immediate flight therefrom, he: (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.' RCW 9A.56.200(1)(a). An accomplice is guilty to the same extent as the principal. RCW 9A.08.020(1)-(2). An accomplice is someone who, `[w]ith 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.' RCW 9A.08.020(3). Presence and knowledge are not enough; the accomplice must associate himself with the crime charged, participate in it, and seek to make it succeed. State v. Amezola, 49 Wn. App. 78, 89, 741 P.2d 1024 (1987). An accomplice is not strictly liable for all acts arising from the initial crime in which he participated unless he associates himself with those acts. State v. Roberts, 142 Wn.2d 471, 512, 14 P.3d 713 (2000). However, an accomplice need not participate in each element of the crime, or share the same mental state required of the principal. Id. at 502. Rather, general knowledge of `the crime' is sufficient, id. at 513; the accomplice need only intend to facilitate the commission of the crime by providing assistance through his presence or act. Id. at 502. Thus, the State must show the accomplice knew that his activity would promote or facilitate commission of the crime.
Olebar's appeal turns on whether there was sufficient evidence for the jury to find he had general knowledge of the robbery, and intended his actions to facilitate it. Vogelbacher testified Olebar was present and assaulted him during the robbery. The remaining evidence relating to Olebar's involvement in the robbery is circumstantial. Circumstantial evidence is sufficient to sustain a robbery conviction. State v. Ammlung, 31 Wn. App. 696, 703, 644 P.2d 717 (1982). A fact finder can infer specific criminal intent where it is a matter of logical probability. Trout, 105 P.3d at 73. The burglary and robbery together lasted about 15 minutes. Olebar broke into Vogelbacher's house with a group including Nacoel and Loney. All the intruders assaulted Vogelbacher. While he was being assaulted, a number of people were taking property from his house. After the initial assault, a few people remained with Vogelbacher and held him down while others continued to take his property. Two people, including Loney, were armed; Loney held a gun at Vogelbacher's head and demanded to know `where's the money.' RP (Oct. 23, 2003) at 158. Nacoel, Loney and Olebar were members of a close family, and Nacoel knew Vogelbacher had won money at a casino. The apparent motive for the crimes was retaliation for Vogelbacher's treatment of Nacoel. Finally, Nacoel left Vogelbacher two voicemail messages in which she claimed responsibility for the incident and mentioned accomplices.
Viewing the evidence on the record in the light most favorable to the State, and accepting all reasonable inferences from it, a fair-minded, rational trier of fact could be convinced that Olebar had a general knowledge of the robbery and intended his actions to facilitate the robbery.
Affirmed.
SCHINDLER and KENNEDY, JJ., concur.