Opinion
No. 51562-4-I
Filed: April 25, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 01-1-06501-3. Judgment or order under review. Date filed: 02/08/2002. Judge signing: Hon. George T Mattson.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Antonio Perryman, Doc# 834343, Wa State Penitentiary, 1313 North 13th Ave, Walla Walla, WA 99362.
Counsel for Respondent(s), Mary Helene Rodrigue Barbosa, Attorney at Law, W554 King Co Cths, 516 3rd Ave, Seattle, WA 98104-2385.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Antonio Perryman was charged with four counts of first degree robbery after he and another person confronted four teenagers and took property from each of them. The jury found Perryman guilty. In this appeal, Perryman contends that the trial court erroneously refused to instruct the jury that the crime of theft in the first degree is a lesser-included offense of robbery in the first degree. Because the factual prong of the lesser-included offense test has not been met, the trial court properly refused to give a lesser-included instruction. We also reject Perryman's challenge to the sufficiency of the evidence. Accordingly, we affirm.
FACTS
One afternoon, Sonny Davis and three of his teenage friends, Thomas, Foxx, and Lewis, were walking along a trail that led to Davis's home when they encountered Perryman and Lonya Champion. A fight ensued between the two groups. Following the confrontation, Davis, who was bleeding profusely from his mouth, and his friends returned to Davis's house without all of their belongings. The police were contacted. Perryman and Champion were arrested and later charged with four counts of first degree robbery.
At the joint trial, the four teenagers positively identified Perryman and Champion as the ones who confronted them, displayed what appeared to be a handgun, and then took certain belongings from each of them. Davis testified that Perryman approached him and "put a gun to my chest." Perryman grabbed Davis's clothing with his free hand and told Davis to give him everything he had. Perryman then hit Davis in the face with the gun, knocking out a tooth and splitting Davis's lip. Meanwhile, Champion punched Thomas and Lewis, and kicked Foxx in the ribs. Perryman told Davis and his friends to get down on the ground and they complied. Perryman then told Davis and his friends to hand over their shoes. Davis, Lewis, and Foxx removed their shoes. Afterwards, they were told to walk down the trail toward the street. Perryman and Champion retrieved the shoes and left.
Report of Proceedings (Dec. 4, 2002) at 55.
Thomas testified that Perryman displayed a gun, waved it at him and his three friends, and told them to give him everything. Foxx and Lewis testified to similar facts. Thomas also testified that Champion reached into Thomas's pocket and removed a pager. Thomas did not have the pager when he and his three friends were ordered out of the area.
Perryman did not testify in his own defense. Champion testified that he and Perryman walked past Davis and his friends on the trail. Champion turned around to see Perryman and Davis in a scuffle. Lewis, Thomas, and Foxx moved as if they intended to help Davis. Champion grabbed Lewis and told them they were not going to "jump" his friend and "you don't have to be like this." Champion scuffled briefly with Lewis and Foxx. According to Champion, Foxx reached into his pocket and retrieved a piece of metal that Champion knocked from his hand. After being thrown into some nearby bushes, Champion got up to see that Foxx, Davis, and Lewis had removed their shoes. Perryman picked up some shoes, and Champion followed his lead and also picked up some shoes, though he did not know why the others had removed their shoes. Champion denied taking money or other items from Davis or anyone else. The jury found Perryman and Champion both guilty. This appeal followed.
Report of Proceedings (December 6, 2002) at 155.
DECISION
Perryman argues that the trial court erred by refusing to give an instruction on first degree theft as a lesser included offense of first degree robbery. Thus, Perryman argues his robbery convictions should be reversed. We disagree.
In Washington, a defendant is entitled to instructions on his or her theory of the case when the instructions are supported by the evidence and correctly state the applicable law. State v. Warden, 133 Wn.2d 559, 564, 947 P.2d 708 (1997). The test for determining whether a lesser included instruction is appropriate involves both legal and factual prongs. State v. Pastrana, 94 Wn. App. 463, 470, 972 P.2d 557 (1999). A lesser-included instruction is warranted if (1) each of the elements of the lesser offense is a necessary element of the offense charged, and (2) the evidence supports an inference that the lesser crime was committed. State v. Berlin, 133 Wn.2d 541, 548, 947 P.2d 700 (1997). The absence of either prong supports denial of a request for the instruction. State v. Perez-Cervantes, 141 Wn.2d 468, 480-81, 6 P.3d 1160 (2000).
Perryman relies on State v. Klimes, 117 Wn. App. 758, 769 n. 4, 73 P.3d 416 (2003) for the proposition that taking property from the person of another and in the presence of another may not constitute alternative means of committing robbery. But we need not decide whether Perryman establishes the legal prong.
Assuming without deciding that the crime of first degree robbery as charged here and first degree theft contain the same legal elements, the second or "factual" prong of the test is not met. To satisfy the factual prong of the test, the evidence must support an inference that the lesser offense was committed. Berlin, 133 Wn.2d at 551. When determining if the evidence was sufficient to support the giving of an instruction, we view the evidence in the light most favorable to the party that requested the instruction. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000). The party requesting the instruction must point to evidence that affirmatively supports the instruction, and may not rely on the possibility that the jury would disbelieve the opposing party's evidence. State v. Charles, 126 Wn.2d 353, 355, 894 P.2d 558 (1995). In other words, there must be evidence supporting an inference that only the lesser offense was committed. State v. Gostol, 92 Wn. App. 832, 837, 965 P.2d 1121 (1998). An inference that only the lesser offense was committed is justified "`[i]f the evidence would permit a jury to rationally find a defendant guilty of the lesser offense and acquit him of the greater.'" State v. Laico, 97 Wn. App. 759, 764, 987 P.2d 638 (1999) (quoting Berlin, 133 Wn.2d at 551).
See In re Salter, 50 Wn.2d 603, 605, 313 P.2d 700 (1957) (holding grand larceny is an included offense in the crime of robbery).
Here, Perryman was tried with his co-defendant, Champion. Perryman did not testify. He argues that Champion's testimony provides evidence that neither co-defendant committed robbery, but that both only committed first degree theft. But Champion's testimony fails to present evidence that Perryman committed only first degree theft. Champion denied that either co-defendant possessed or displayed a firearm. But Champion stated only that he himself did not order the victims to take off their shoes; that he did not take any property from "the person of" any of the victims; that he did not threaten anyone; and that the fight he engaged in with some of the victims was not intended to promote taking the victims' property. Champion also testified that he did not see how Davis's mouth was injured; did not know why Perryman and Davis were fighting; did not know how Perryman and Davis's fight stopped; and did not know how the victims came to take off their shoes.
The victims' testimony addresses these questions, even if the possession or use of a gun is discounted. The victims testified that Perryman came up to Davis, told Davis to give him everything he had, and hit Davis in the mouth hard enough to knock out a tooth. Perryman then told the victims to get on the ground and take off their shoes, and took money from one of the victims as well as taking the shoes.
In short, the evidence at Perryman's trial regarding his actions, as opposed to Champion's, simply does not establish that he was guilty only of first degree theft. See State v. McClam, 69 Wn. App. 885, 890, 850 P.2d 1377 (1993) ("[A] lesser included offense instruction is not to be given simply because the jury could disbelieve one prong of the State's evidence."). There was no instructional error because the factual prong was not satisfied.
Perryman next contends that the State failed to prove all the essential elements of one of his robbery convictions. Because the State did not prove that either Perryman or Champion intended to deprive Thomas of any property, argues Perryman, "this court must reverse and dismiss his conviction." We do not agree.
Brief of Appellant at 22.
Due process requires the State to prove each and every element of the crime beyond a reasonable doubt. State v. Aver, 109 Wn.2d 303, 310, 745 P.2d 479 (1987). When the sufficiency of the evidence is challenged on appeal, the question is 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). In reviewing such a challenge, all reasonable inferences from the evidence must be drawn in favor of the State, and interpreted most strongly against the defendant. State v. G.S., 104 Wn. App. 643, 651, 17 P.3d 1221 (2001). Circumstantial evidence and direct evidence are equally reliable. State v. Finley, 97 Wn. App. 129, 138, 982 P.2d 681 (1999).
Perryman's argument appears to be based on the fact that the only item taken from Thomas, a pager, was thrown to the ground by codefendant Champion. Because the pager was eventually discarded, Perryman argues, the evidence "is insufficient to establish that Perryman or Champion took any property from Thomas with the intent to deprive him of it." When viewed in the light most favorable to the State, however, ample evidence was presented to satisfy the intent to deprive element of first degree robbery. Intent to permanently deprive is not an element of the crime of robbery. State v. Komok, 113 Wn.2d 810, 816-17, 783 P.2d 1061 (1989). In Komok, the supreme court noted that a common meaning of "deprive" is "`[t]o take something away from'" or "`[t]o keep from having and enjoying.'" Id. at 815 n. 4 (quoting Webster's II New Riverside University Dictionary 365 (1984)). Under the circumstances in this case, there was sufficient evidence from which the jury could find Perryman guilty beyond a reasonable doubt of first degree robbery. Perryman's challenge to the sufficiency of the evidence therefore fails.
Brief of Appellant at 22.
Affirmed.
COX, C.J., BECKER, J. and AGID, J.