Opinion
No. 65063-7-I.
January 18, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Whatcom County, No. 09-1-01378-3, Steven J. Mura, J., entered February 18, 2010.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Dwyer, C.J., and Lau, J.
Puga was convicted of first degree robbery. Puga alleges that the charging document was constitutionally insufficient. He also contends the trial court erred by failing to instruct the jury on lesser included offenses and by precluding him from arguing his theory of the case. We affirm.
FACTS
Shortly before 2 a.m. on November 15, 2009, Moses Puga and two others went to the Sehome Haggen grocery store. Haggen employee, Andrew Thompson, observed them walking out with an unpurchased 24-pack of Corona. While he waited for other employees to respond to his emergency call, Thompson went to the door. He saw two individuals standing 40 to 50 feet away, behind the store's drive-thru pick up area. He also saw two individuals further away, running with the beer. The distance between the carport and the two individuals running was somewhere between 40 feet and 100 feet. One of the two at the carport was later identified as Puga. A witness testified that when Haggen employees came outside, Puga separated from the group that was running and stayed in the area of the drive-thru.
Rory Sprague, another employee, came running out several seconds after Thompson. Thompson pointed toward the two individuals with the beer, and Sprague pursued. Sprague and two witnesses testified that as Sprague approached Puga, Puga swung an empty bottle at him that slipped out of his hand and broke on the ground. After Puga swung the bottle, Thompson ran inside to call the police. Sprague and two witnesses testified that Puga immediately started punching Sprague. He hit Sprague on the forehead, the bridge of the nose, and under his eye. After two others joined Sprague, Puga was wrestled to the ground. The police arrived and detained Puga.
The State charged Puga with robbery in the first degree. At trial, Puga testified that when he saw Sprague running toward him, he threw a bottle of beer he was holding and bent to pick up a cigarette he had dropped. He claimed that as he stood up Sprague was coming at him and started hitting him. He hit back before being wrestled to the ground. He testified that he was trying to get away when the scuffle happened.
The jury found Puga guilty as charged. Puga appeals.
DISCUSSION
I. Sufficiency of the Charging Document
All essential elements of an alleged crime, whether statutory or nonstatutory, must be included in the charging document in order to afford the accused notice of the nature of the allegations so that a defense can be properly prepared.State v. Kjorsvik, 117 Wn.2d 93, 101-02, 812 P.2d 86 (1991). If, as here, the sufficiency of a charging document is not challenged until after the verdict, the charging document will be more liberally construed in favor of validity.Id. at 102. Courts consider (1) whether the necessary elements appear in any form, or can be found by fair construction, in the charging document; and, if so, (2) whether the defendant nonetheless suffered actual prejudice as a result of the inartful, vague, or ambiguous charging language.Id. at 105-06. When applying this test to nonstatutory elements, it is not fatal to an information that the exact words of the case law element are not used; rather, the question is whether all the words used would reasonably apprise an accused of the elements of the crime charged. Id. at 109.
The statutory elements of robbery are: (1) a taking of personal property; (2) from the person or in one's presence; (3) by the use or threatened use of such force, or violence, or fear of injury; (4) such force or fear being used to obtain or retain the property, or overcome resistance to the taking. RCW 9A.56.190; State v. Phillips, 98 Wn. App. 936, 943, 991 P.2d 1195 (2000). The first degree robbery statute, under the alternative relevant to this case, adds: a person is guilty of robbery in the first degree if, in the commission of a robbery or of immediate flight therefrom, he or she inflicts bodily injury. RCW 9A.56.200. Robbery also includes the nonstatutory element that the property taken belonged to someone other than the defendant. See State v. Graham, 64 Wn. App. 305, 308, 824 P.2d 502 (1992).
The charging document here stated:
That on or about the 15th day of November, 2009, the said defendant, MOSES PUGA, then and there being in said county and state, did unlawfully take personal property from the person of another or in his or her presence against his or her will by the use of force or threatened use of immediate force, violence or fear of injury to that person or his or her property or the property of anyone, such force or fear being used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking, and in the commission of the robbery or in immediate flight therefrom, he inflicted bodily injury, in violation of RCW 9A.56.200, which violation is a Class A Felony.A. Ownership of the Property Taken
Puga contends that the information is fatally defective because it failed to allege a nonstatutory element of the offense of robbery, i.e., that the victim had ownership or dominion and control over the property taken. We disagree.
We addressed a similar issue in Graham. In that case, one appellant's information alleged in pertinent part:
"That the respondent . . . did unlawfully take personal property, to-wit: a leather jacket, from the person and in the presence of Mark Leen, against his will, by the use or threatened use of immediate force, violence and fear of injury to such person or his property."
Graham, 64 Wn. App. at 307 (alteration in original). Under the first prong of Kjorsvik's liberal construction test, the information sufficiently alleged this element. Graham, 64 Wn. App. at 308. An allegation that the defendant "unlawfully" took personal property implies that the defendant had no legal claim to the property, and that ownership was in some person other than the defendant.Id. Also, that the property was taken "from the person" of the victim indicates that the victim had actual possession of, and thus dominion and control over, the property taken. Id. The ownership element of robbery is satisfied if the information alleges that the victim had actual physical possession of the property taken. Id.
As in Graham, a liberal and fair construction of the language in the information shows Puga was reasonably apprised of the allegation that the property he took belonged to someone other than himself.
The Tvedt case, relied on heavily by Puga, is inapposite because it involves the application of the essential elements rule to a unit of prosecution issue. State v. Tvedt, 153 Wn.2d 705, 714-15, 107 P.3d 728 (2005). The issue there was whether the State could charge multiple counts of robbery based on takings occurring in the presence of two separate persons at two different gas stations. Id. Here, only one count was alleged, so the issue as to which specific person the property was taken from is not as crucial.
B. Omission of the Victim's Name and a Description of the Property
Puga next faults the information for failing to identify the victim by name. He is incorrect. Informations alleging crimes that involve an act against another person, as opposed to a specific person, do not need to state the name of the victim.City of Seattle v. Termain, 124 Wn. App. 798, 805, 103 P.3d 209 (2004). For example, the identity of the owner of the property taken is not required for charges of possession of stolen property, larceny, or theft. State v. McReynolds, 117 Wn. App. 309, 335-36, 71 P.3d 663 (2003) (possession of stolen property); State v. Easton, 69 Wn.2d 965, 967-69, 422 P.2d 7 (1966) (larceny); State v. Greathouse, 113 Wn. App. 889, 904-05, 56 P.3d 569 (2002) (information was constitutionally sufficient even though it failed to name the owner of property in theft by embezzlement charge). It is also not necessary to name the victim of an assault. See State v. Winings, 126 Wn. App. 75, 85-86, 107 P.3d 141 (2005) (information charging second degree assault with deadly weapon); State v. Plano, 67 Wn. App. 674, 679-80, 838 P.2d 1145 (1992) (fourth degree assault charge). Likewise, robbery involves an act against another person, not a specific person. Puga's information was not defective for failing to name the victim.
Puga also argues the State needed to identify the property taken. But State v. Tresenriter, 101 Wn. App. 486, 494-95, 4 P.3d 145, 14 P.3d 788 (2000), established that this is not the case. In Tresenriter, the information alleged possession of stolen property. Id. at 494. It did not state what the property was, where it was located, or its connection to the defendant's charges. Id. The information was constitutionally sufficient because the omitted information did not constitute elements of the charged crime.Id. at 495. The remedy for the lack of specificity was to request a bill of particulars. Id. Similarly, here, Puga could have sought a bill of particulars if there was any doubt as to what property he was charged with taking.
Puga claims that the information lacked sufficient factual support. He cites to Termain. But Termain's holding is not applicable here. Termain was charged with violation of a domestic violence no-contact order.Termain, 124 Wn. App. at 800. That is a crime against a particular person. A different standard applies.Id. at 805.
Finding that the information contained all the essential elements, we normally next proceed to the second prong of theKjorsvik test to ask whether vague or inartful language actually prejudiced the defendant. Kjorsvik, 117 Wn.2d at 106. But, Puga has not argued that he was actually prejudiced. Nor did he, below, avail himself of a bill of particulars, the proper mechanism for obtaining additional information. See State v. Eaton, 164 Wn.2d 461, 470 n. 6, 191 P.3d 1270 (2008) (J.M. Johnson, J., concurring);State v. Davis, 60 Wn. App. 813, 821, 808 P.2d 167 (1991), aff'd, 119 Wn.2d 657, 835 P.2d 1039 (1993). He cannot establish prejudice as a result of his failure to do so.Holt, 104 Wn.2d at 320. Accordingly, we hold that the information sufficiently apprised Puga of the charged offense so as to allow him to prepare a defense.
II. Lesser Included Offense Instructions
Puga next argues that the court erred in refusing to instruct the jury on second degree robbery, third degree theft, and fourth degree assault. The State argues that there was insufficient evidence to support the requested instructions. We agree.
An instruction on a lesser included offense is warranted when two conditions are met: first, each of the elements of the lesser offense must be a necessary element of the offense charged, and second, the evidence in the case must support an inference that the lesser crime was committed. State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000). The two conditions, the legal prong and factual prong, are based on the tests set forth in State v. Peterson 133 Wn.2d 885, 891, 948 P.2d 381 (1997), and State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). The factual test requires a showing more particularized than that required for other jury instructions. Fernandez-Medina, 141 Wn.2d at 455. Specifically, the evidence must raise an inference that only the lesser included offense was committed to the exclusion of the charged offense. Id. The remedy for failure to give a lesser included instruction when one is warranted is reversal.State v. Ginn, 128 Wn. App. 872, 878, 117 P.3d 1155 (2005).
Here, the State does not dispute that the legal prong of theWorkman test is satisfied. Thus, the question is whether the evidence raises an inference that only the lesser included offense was committed to the exclusion of the charged offense. Fernandez-Medina, 141 Wn.2d at 455.
The evidence is viewed in the light most favorable to the party seeking the instruction. Id. at 455-56. But, evidence must affirmatively establish the defendant's theory of the case — it is not enough that the jury might disbelieve the evidence pointing to guilt. Id. at 456. The court reviews a trial court's refusal to give an instruction, based on the sufficiency of evidence to give that instruction, for abuse of discretion. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998).
A. Second Degree Robbery Instruction
Puga proposed a second degree robbery instruction. A defendant is not entitled to instructions on second degree robbery where there is no factual dispute as to the element distinguishing it from first degree robbery. See State v. Pacheco, 107 Wn.2d 59, 69-70, 726 P.2d 981 (1986). The only difference between first degree robbery as charged and second degree robbery is whether injury resulted. RCW 9A.56.200; RCW 9A.56.210. Here, there was no dispute that Sprague suffered injuries. The trial court did not abuse its discretion when it denied Puga's requested instruction on second degree robbery.
B. Third Degree Theft and Fourth Degree Assault Instructions
Puga also requested instructions on third degree theft and fourth degree assault in support of his theory of the case that two independent acts took place, a theft and a separate assault. The trial court refused to give these instructions.
Third degree theft, here, is the theft of property or services which does not exceed seven hundred fifty dollars in value. RCW 9A.56.050(1)(a).
Puga's suggested instruction stated that: "A person commits the crime of assault in the fourth degree when he or she commits an assault."
Because some of the proposed jury instructions were discussed in chambers, the trial court's reasoning is not contained in the record. It appears that the court agreed with the State that Puga had failed to produce sufficient evidence supporting an inference that only the lesser included crimes occurred. During the motions in limine the State requested that the defense be precluded from arguing that Puga's conduct violated other statutes not charged, unless lesser included instructions were sought and given. The defense indicated it would seek lesser included instructions, but the court stated it would reserve its decision until the evidence had been presented. When defense counsel started to argue in closing that Puga was only guilty of third degree theft and assault, the State's objection that it violated the in limine ruling was sustained. That would indicate the court rejected the lesser included instructions due to the evidence that was produced at trial.
First degree robbery as charged occurs when a person inflicts bodily injury in the commission of a robbery or in immediate flight therefrom. RCW 9A.56.200(1)(iii). It requires a connection between the use of force and taking of the property.State v. Johnson, 155 Wn.2d 609, 611, 121 P.3d 91 (2005). Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking. RCW 9A.56.190.
Puga contends that the evidence does not establish this link because he assaulted Sprague not to facilitate the taking but because he believed that Sprague was attacking him. Thus, he argues, the evidence supports a reasonable inference that the two lesser offenses occurred, to the exclusion of the greater offense. However, even when the evidence and inferences are construed in favor of Puga, the assault clearly relates to the taking.
On appeal, Puga must show evidence that affirmatively establishes his theory of the case. Fernandez-Medina, 141 Wn.2d at 456. Puga's theory relies substantially on his subjective intent. Specifically, that he did not intend to use force to further the theft. But, his own testimony fails to produce support for this theory. The evidence only connects the taking to the force.
On cross-examination, Puga admitted to the element of first degree robbery that he now disputes on appeal:
Q The reason the three of you went to the store was to get the beer, right?
A Yes.
Q And the reason that you used force was to try to get away to drink the beer; is that right?
A Yes.
Q And the three of you were stealing the beer, right?
A Yeah.
Q And you knew that the people from Haggen were coming to stop you from stealing the beer, right?
A Yes.
Q You used force to try to keep the beer so you could drink it later on that night; isn't that right?
A Yes.
This admission explicitly connects the taking to the force. It therefore contradicts the alternative inference that Puga claims entitles him to the lesser included theft and assault instructions.
A criminal defendant will not be denied lesser included instructions simply because his testimony is inconsistent with the alternative inference. See Fernandez-Medina, 141 Wn.2d at 460-61. In Fernandez-Medina, lesser offense instructions should have been given even though Fernandez-Medina's testimony conflicted with the lesser offense theory in that he maintained he was guilty of neither the lesser or greater offense. Id. at 456-57. Puga's conflicting testimony is very different. There, the lesser instructions were warranted because substantial evidence supported an alternative inference. Id. at 456-57. And Fernandez-Medina's testimony was unrelated to this evidence.Id. at 451. In contrast, Puga asks the court to disregard his testimony that is directly on point — testimony that overtly undermines his theory and, consequently, any other evidence that might support it.
And, no other evidence provides affirmative support for Puga's theory. On redirect, Puga clarified that he did not attack Sprague so that his friends could get away with the beer. However, this is not affirmative evidence that Puga did not attack Sprague so that he could get away and have the beer. In fact, his testimony lends support to the inference that he attacked Sprague for precisely this purpose. On direct-examination, he said he was trying to get away in order to drink more. This is not conclusive evidence that he intended to drink the stolen beer. But, it is also not affirmative evidence of an alternative theory.
Puga claims he found himself in an unanticipated fight with Sprague, unrelated to the theft. The evidence does not support this theory. On direct-examination Puga explained that, after walking out of Haggen, he saw a man come out after them. And, on redirect he said he was scared and threw the bottle because "they came after us, you know, which never happens." This testimony does not support an inference, even construing the evidence in favor of Puga, that Puga had reason to believe Sprague had more violent intentions than retrieving the stolen property. The evidence suggests he knew exactly why Sprague was after him.
Puga points to the fact that his friends had continued on without him and were significantly further away. He suggests this is evidence he had "paused" outside the store. However, the distance supports the State's theory that Puga stayed back to scare off the advancing Haggen employees.
Finally, Puga denied hitting Sprague until the employee had hit him. But, whether Sprague hit Puga first or not is not of consequence. Puga was fleeing. Puga used force against Sprague who was pursuing him from the store. No evidence negates that the force was used during flight.
Puga fails to show evidence in the record supporting a rational inference that he committed only the lesser included offenses. Accordingly, we hold the trial court did not abuse its discretion when it refused Puga's proposed instructions on third degree theft and fourth degree assault.
III. Puga's Right to Present a Defense
Finally, Puga argues that the court's order prohibiting counsel from arguing his theory of the events denied him of his right to present a defense. We disagree.
A trial court has the discretion, indeed the duty, to restrict the argument of counsel to the facts in evidence. State v. Woolfolk, 95 Wn. App. 541, 548, 977 P.2d 1 (1999). However, the court cannot compel counsel to reason logically or draw only those inferences from the given facts which the court believes to be logical. City of Seattle v. Arensmeyer, 6 Wn. App. 116, 121, 491 P.2d 1305 (1971). This court reviews a trial court's limitation on defense counsel's argument for an abuse of discretion. State v. Jack, 63 Wn.2d 632, 638, 388 P.2d 566 (1964).
The defense is not entitled to a closing argument that is not within the issues in the case. Herring v. New York, 422 U.S. 853, 860, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975). Because there was insufficient evidence to support the lesser included offenses, the trial court properly prevented Puga from arguing them in closing. And, this prohibition did not lessen the burden on the State to prove its case. The ruling did not prohibit defense counsel from challenging the State's evidence connecting the use of force to the theft. Because the trial court did not reduce the State's burden, it did not infringe upon Puga's due process rights. Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 1999). The fact that Puga failed to convince the jury of his argument does not entitle him to reversal on appeal. We hold that the trial court did not abuse its discretion in limiting Puga's closing argument to the issues in the case.
We affirm.