Opinion
No. 25879-3-III.
January 17, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-1-01146-6, Salvatore F. Cozza, J., entered January 24, 2007.
Affirmed by unpublished opinion per Thompson, J. Pro Tem., concurred in by Brown and Kulik, JJ.
Donald Thomas Phillips was charged and convicted of one count of first degree kidnapping and three counts of second degree robbery. Mr. Phillips appeals his convictions claiming that his kidnapping charge should merge into his robbery convictions; that two of his robbery convictions should be dismissed because the three robberies only constituted one unit of prosecution for double jeopardy purposes; that there was insufficient evidence to support his kidnapping and robbery convictions; and that he should have received an exceptional sentence downward. We affirm.
FACTS
Late in the evening of April 1, 2006, Donald Thomas Phillips knocked on the rear sliding glass door of his neighbors, Karen and Mark Postlewait. When Mr. Postlewait let him in, Mr. Phillips indicated he needed money and a ride downtown. Mr. Phillips was agitated and was yelling obscenities. After Mr. Phillips threatened to harm Mr. Postlewait and his family, Mr. Postlewait gave Mr. Phillips $23 out of his wallet. He then got dressed and drove Mr. Phillips downtown.
Once in the car, Mr. Phillips once again threatened Mr. Postlewait and demanded that he drive to an ATM machine at a nearby Safeway to withdraw money. At Safeway, they both got out of the car and Mr. Phillips took the keys. Once inside, Mr. Phillips directed Mr. Postlewait to withdraw $60, which he did. The two returned to the car where Mr. Phillips again threatened Mr. Postlewait stating, "I know people who will come back and get you, I have connections to get you and your family." Report of Proceedings (RP) at 154.
After they left Safeway, Mr. Phillips directed Mr. Postlewait to stop at a convenience store so he could get something to drink. Mr. Phillips took the keys while Mr. Postlewait waited in the car.
When he returned, Mr. Phillips directed Mr. Postlewait to another convenience store downtown where he demanded that Mr. Postlewait give him more money. Mr. Postlewait complied, withdrawing another $60 from the ATM.
While in the store, Mr. Phillips saw an acquaintance and offered him a ride. Both men got into Mr. Postlewait's car. Mr. Phillips told him, "I will hunt you down, and I will find you, and I will send people that I know to come get you, and they will kill you and your family." RP at 159. Mr. Postlewait shuttled the two men downtown where they both got out of the car. Mr. Postlewait then returned home where he prayed and called his pastor to discuss what he should do. Mr. Postlewait did not contact the police until later that afternoon.
Mr. Phillips defended primarily on the basis that Mr. Postlewait's version of events was not credible and was inconsistent with a typical robbery. For instance, during the cross-examination of Mr. Postlewait, defense counsel highlighted the discrepancies in the stories told by Mr. Postlewait to the investigating officers and later to an investigator for the defense. He further emphasized the facts which were seemingly inconsistent with a robbery. For example, Mr. Phillips turned his back while Mr. Postlewait entered his personal identification number into the ATM. Additionally, Mr. Postlewait had numerous opportunities to summon help and/or flee, but did not do so. He argued that this evidence could just as easily support a finding that the money was merely a loan between acquaintances and that Mr. Postlewait voluntarily gave him a ride downtown.
The jury rejected Mr. Phillips' arguments and found him guilty of one count of first degree kidnapping and three counts of second degree robbery. Mr. Phillips subsequently requested a sentence below the standard range on the basis that the presumptive range was clearly excessive given the facts and circumstances surrounding his case. The court rejected the argument and sentenced Mr. Phillips within the standard range. Mr. Phillips filed a timely appeal from his judgment and sentence.
ANALYSIS
Mr. Phillips first argues that his kidnapping and robbery convictions violate the double jeopardy provisions of the federal and state constitutions. We review claims of a double jeopardy violation de novo. See State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005).
The Fifth Amendment to the United States Constitution and article I, section 9 of the Washington State Constitution prohibit the State from placing an individual in jeopardy twice for the same offense. See, e.g., State v. Linton, 156 Wn.2d 777, 782, 132 P.3d 127 (2006). The double jeopardy doctrine protects an individual against multiple punishments for the same offense. Id. at 783. But this prohibition does not preclude the State from charging multiple offenses based on the same transaction. State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983).
When the intent of the legislature is clear, we may conclude that the legislature intended to punish two offenses arising out of the same act separately. Freeman, 153 Wn.2d at 771-72. Otherwise, we employ a two-tiered analysis when evaluating the claim of a double jeopardy violation. Id. at 772; see also Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
"First, the offenses must be factually the same." In re Pers. Restraint of Fletcher, 113 Wn.2d 42, 47, 776 P.2d 114 (1989). This means that the proof of both offenses is the same. Id. If proof of one offense would not necessarily prove the other, then there is no double jeopardy violation. Id. (quoting Vladovic, 99 Wn.2d at 423). Second, we must examine whether the offenses, as charged, contain the same elements. Fletcher, 113 Wn.2d at 49. If each offense contains elements not included in the other, then there is no double jeopardy violation. Id. The elements of the crime are not considered on an abstract level, but are viewed in light of the proof required for each offense. Freeman, 153 Wn.2d at 772. Both parts of the two-tiered analysis must be met: double jeopardy arises only when the offenses are the same in law and in fact. See Vladovic, 99 Wn.2d at 423.
A second degree robbery charge contains the element of a taking of personal property, which is not an element of first degree kidnapping. See RCW 9A.56.190, .210. And a charge of first degree kidnapping requires proof of the use or threatened use of deadly force. See RCW 9A.40.010, .020. Deadly force is not an element of robbery. RCW 9A.56.210. Moreover, proof of a kidnapping is not necessary to prove second degree robbery and proof of first degree kidnapping requires only the intent to commit robbery, not the completion of the robbery. Thus, there is no double jeopardy violation.
Nevertheless, Mr. Phillips argues that double jeopardy was violated because the alleged kidnapping was merely incidental to and served no independent purpose other than the completion of the alleged robberies. As such, he claims his convictions should merge. The Washington Supreme Court ruled on this very issue in State v. Louis, 155 Wn.2d 563, 120 P.3d 936 (2005).
The merger doctrine is "`used to determine whether the Legislature intended to impose multiple punishments for a single act which violates several statutory provisions.'" Louis, 155 Wn.2d at 570 (quoting Vladovic, 99 Wn.2d at 419 n. 2). In Louis, the court expressly rejected the "kidnapping merger rule" and held that, because proof of kidnapping is not necessary to prove robbery, those charges do not merge. 155 Wn.2d at 571. Thus, a defendant "may be punished separately for robbery and kidnapping." Id.
In any event, the alleged kidnapping in this case was not merely incidental to the completion of the robberies. As the State argues, the kidnapping, even though done with the purpose of facilitating the last two robbery counts, had a separate and distinct "injury." The victim was forced out of his house and required to transport Mr. Phillips around Spokane in addition to supplying funding. This was a separate injury beyond the taking of the money.
Mr. Phillips also argues that two of his second degree robbery convictions (Counts III and IV) violated the double jeopardy clauses of the federal and state constitutions because the three alleged robberies only constituted one unit of prosecution for double jeopardy purposes.
"Double jeopardy principles protect a defendant from being convicted more than once under the same statute if the defendant commits only one unit of the crime." State v. Westling, 145 Wn.2d 607, 610, 40 P.3d 669 (2002) (citing State v. Adel, 136 Wn.2d 629, 634, 965 P.2d 1072 (1998)). Accordingly, in order to resolve whether double jeopardy principles are violated when a defendant is convicted of multiple violations of the same statute, we must determine what "unit of prosecution" the legislature intends to be the punishable act under the statute. Westling, 145 Wn.2d at 610; In re Pers. Restraint of Davis, 142 Wn.2d 165, 172, 12 P.3d 603 (2000); State v. Tili, 139 Wn.2d 107, 113, 985 P.2d 365 (1999); Adel, 136 Wn.2d at 634. The unit of prosecution for a crime may be an act or a course of conduct. United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 225-26, 73 S. Ct. 227, 97 L. Ed. 260 (1952); State v. Root, 141 Wn.2d 701, 710, 9 P.3d 214 (2000); Adel, 136 Wn.2d at 634.
In determining legislative intent as to the unit of prosecution, we first look to the relevant statute. The meaning of a plain, unambiguous statute must be derived from the statutory language. Westling, 145 Wn.2d at 610; Tili, 139 Wn.2d at 115. We are not allowed to look for an intent that reasonably could be imputed to the legislature, nor is it permitted to construe the statute in a way that we believe would best accomplish evident statutory purpose. State v. Tvedt, 153 Wn.2d 705, 107 P.3d 728 (2005). Rather, as the Supreme Court has held,
"when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress sould have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication."
Id. at 711 (quoting Universal C.I.T. Credit Corp., 344 U.S. at 221-22). Therefore, if the legislature fails to define the unit of prosecution or its intent is unclear, under the rule of lenity any ambiguity must be "`resolved against turning a single transaction into multiple offenses.'" Adel, 136 Wn.2d at 635 (quoting Bell v. United States, 349 U.S. 81, 84, 75 S. Ct. 620, 99 L. Ed. 905 (1955)).
In Tvedt, the Washington Supreme Court held that the unit of prosecution for robbery is "each separate forcible taking of property from or from the presence of a person having an ownership, representative, or possessory interest in the property, against that person's will." 153 Wn.2d at 714-15. More specifically, the court held that a conviction on one count of robbery may result from each separate taking of property from each person; however, multiple counts may not be based on multiple items of property taken from the same person at the same time, nor may multiple counts be based on a single taking of property from or from the presence of multiple persons even if each has an interest in the property.
Here, Mr. Phillips was charged with multiple counts of robbery for taking multiple items of property from the same person at different times during the evening and from different locations — a slightly different factual scenario than that addressed by the court in Tvedt. It is clear from the facts of this case that three separate "takings" occurred: First, when Mr. Phillips used threats to obtain the contents of Mr. Postlewait's wallet; second, when Mr. Phillips used additional threats to obtain $60 from the ATM at the Safeway store; and finally, when he obtained additional cash at a convenience store in downtown Spokane. None of these crimes furthered the other crimes. Each were separated by time and location. Under these facts, each of these incidents was itself an act of robbery. As such, there was no double jeopardy violation and the trial court properly denied Mr. Phillips' motion to dismiss.
Mr. Phillips next contends that there was insufficient evidence to support his conviction for first degree kidnapping because there was no evidence that he intentionally abducted Mr. Postlewait with the intent to facilitate the commission of any felony or flight thereafter. More specifically, there was insufficient evidence presented that Mr. Phillips restrained Mr. Postlewait by using or threatening to use deadly force.
When evaluating the sufficiency of the evidence, we must determine whether, when viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). "Credibility determinations are for the trier of fact and cannot be reviewed on appeal." State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
To convict Mr. Phillips of first degree kidnapping, the State had to prove beyond a reasonable doubt that he intentionally abducted Mr. Postlewait with intent to facilitate commission of any felony or flight thereafter. RCW 9A.40.020(1)(b). "Abduct" is defined as restraining "a person by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly force." RCW 9A.40.010(2). "Restrain" means "to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with his liberty." RCW 9A.40.010(1).
Mr. Phillips argues that the evidence presented at trial supports the conclusion that Mr. Postlewait accompanied Mr. Phillips voluntarily, not because of any threats of deadly force. However, Mr. Postlewait testified at trial that Mr. Phillips demanded money and a ride or he would kill him and his family. These threats continued throughout the time that Mr. Postlewait drove Mr. Phillips around town and stopped to obtain more money. And each time Mr. Postlewait and Mr. Phillips stopped at a new location, Mr. Phillips took Mr. Postlewait's keys. As all inferences that can be drawn from the evidence must be drawn in favor of the State, see Green, 94 Wn.2d at 221, there was sufficient evidence that Mr. Phillips intentionally abducted Mr. Postlewait with the intent to facilitate the commission of a robbery. The fact that Mr. Postlewait may have given differing versions of the incident goes to his credibility and "[c]redibility determinations are for the trier of fact and cannot be reviewed on appeal." Camarillo, 115 Wn.2d at 71.
Mr. Phillips also contends that there was insufficient evidence to support his three second degree robbery convictions. The crime of second degree robbery requires proof that a defendant stole personal property from the person of another or in the presence of another by the use or threatened use of force. RCW 9A.56.190, .210. "Any force or threat, no matter how slight, which induces an owner to part with his property is sufficient to sustain a robbery conviction." State v. Ammlung, 31 Wn. App. 696, 704, 644 P.2d 717 (1982).
Again, Mr. Phillips argues that the evidence suggests that Mr. Postlewait voluntarily gave or loaned Mr. Phillips the money. However, Mr. Postlewait testified that he gave Mr. Phillips the contents of his wallet because Mr. Phillips threatened his life and the life of his family. Mr. Postlewait then drove where Mr. Phillips told him and retrieved money from two ATMs because Mr. Phillips demanded he do so under repeated threats of harm. As all inferences that can be drawn from the evidence must be drawn in favor of the State, see Green, 94 Wn.2d at 221, there was sufficient evidence to support the second degree robbery convictions. Once again, the fact that Mr. Postlewait may have given differing versions of the incident goes to his credibility and "[c]redibility determinations are for the trier of fact and cannot be reviewed on appeal." Camarillo, 115 Wn.2d at 71.
Finally, Mr. Phillips contends that the trial court erred in denying his motion for a downward departure. Ordinarily, a defendant may not appeal a standard range sentence. RCW 9.94A.585; State v. Cole, 117 Wn. App. 870, 881, 73 P.3d 411 (2003), review denied, 151 Wn.2d 1005 (2004). But RCW 9.94A.585 is not an absolute prohibition of the right of appeal. State v. Herzog, 112 Wn.2d 419, 423, 771 P.2d 739 (1989). Where a defendant has requested an exceptional sentence below the standard range, appellate review is limited to circumstances where the trial court has refused to exercise discretion at all or relied on an impermissible basis for refusing to impose an exceptional sentence downward. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997), review denied, 136 Wn.2d 1002 (1998). Thus,
a trial court that has considered the facts and has concluded that there is no basis for an exceptional sentence has exercised its discretion, and the defendant may not appeal that ruling. So long as the trial court has considered whether there is a basis to impose a sentence outside the standard range, decided that it is either factually or legally insupportable and imposed a standard range sentence, it has not violated the defendant's right to equal protection.
Id.
Here, counsel for Mr. Phillips argued to the court that an exceptional sentence downward should be imposed under these circumstances. But, after hearing arguments of counsel, the sentencing court sentenced Mr. Phillips within the standard range. Mr. Phillips does not argue nor can anything be found in the record to indicate that the court did not consider whether there was a legal or factual basis for imposing an exceptional sentence downward or that it refused to exercise its discretion. Thus, there was no abuse of discretion.
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.
BROWN, J. and KULIK, J., concur.