Opinion
No. 57861-8-I.
April 21, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 04-1-02014-4, James H. Allendoerfer, J., entered March 6, 2006.
Affirmed by unpublished opinion per Grosse, J., concurred in by Appelwick and Leach, JJ.
The number of robberies a defendant may be convicted of without violating double jeopardy principles is not determined by merely counting the number of victims or the number of items taken by force.
Merger is appropriate where the evidence supporting each conviction is identical. Here, the trial court properly found Richard Upchurch's robbery convictions merged when the charging document alleged the exact same course of conduct for each count, excepting the victim. We affirm.
FACTS
Awakened by loud knocking on the door to his family's home late on July 26, 2004, Scott Rutledge opened the door to four masked men, one pointing a gun at his head. Scott was struck on his head and, while unconscious, was bound with duct tape. Also at home that evening was Scott's wife, Lisa Rutledge, and their children, K.R. and B.R., then 15 and 8 years old, respectively.
We refer to the Rutledges by their first names to avoid confusion. No disrespect is intended.
The Rutledge home was vandalized and numerous items were taken, ranging from jewelry to televisions to antique shotguns. The intruders repeatedly threatened to kill the Rutledges. The intruders discovered keys in the kitchen and demanded that Lisa tell them which key belonged to their white van outside. Confused and terrified, Lisa told them the wrong key. When the men discovered this mistake they went to Scott who showed them the correct key for the white van.
Three men took Scott and placed him in the back of the van. Two of the men got in the van and drove off. Later, a state trooper noticed the van with a taillight out and when he tried to make a traffic stop, the van sped away. The trooper gave chase for about six miles and the van eventually crashed into some brush and trees. By the time the trooper reached the van, the two men had fled, leaving Scott bound in the back of the van along with many of the items stolen from the Rutledge home. The Rutledges' other minivan, a red one, was also stolen by the intruders during that eventful night.
Three other defendants were arrested for their alleged involvement with the incident before the police investigation eventually led to Richard Upchurch's arrest. In the middle of being read his Miranda warnings by Detective Jeff Franzen, Upchurch interrupted to ask whether this concerned the home invasion. After initially denying any involvement in the robbery, Upchurch admitted to some involvement in the robbery.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
An alternate juror was seated after jury deliberations had begun when the court dismissed a juror for misconduct. Upchurch was subsequently found guilty of two counts of first degree robbery, one count of first degree burglary, three counts of second degree assault, and one count of second degree kidnapping with each count having a firearm enhancement. The trial court then merged the two counts of robbery and one count of second degree assault.
Upchurch appeals, contending the trial court erred by dismissing the juror and that his kidnapping and second degree assault convictions are unsupported by sufficient evidence. The State cross-appeals, contending the trial court erred in merging the two counts of first degree robbery.
ANALYSIS
Merger
Whether or not a lower court has correctly identified the statutory unit of prosecution is a question of law we review de novo. 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. Where the defendant is convicted of multiple counts under the same statute, we must determine what the legislature intended as the punishable act under that statute. The unit of prosecution for a crime may be a single act or a course of conduct.
State v. Ose, 156 Wn.2d 140, 144, 124 P.3d 635 (2005).
U.S. Const. amend. V; Wash. Const. art. I, § 9; see also State v. Linton, 156 Wn.2d 777, 782, 132 P.3d 127 (2006).
State v. Westling, 145 Wn.2d 607, 610, 40 P.3d 669 (2002).
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. Tvedt, 153 Wn.2d 705, 710, 107 P.3d 728 (2005).
Upchurch was convicted of two counts of robbery in the first degree. The legislature's definition of robbery follows:
RCW 9A.56.200 provides:
(1) A person is guilty of robbery in the first degree if:
(a) In the commission of a robbery or of immediate flight therefrom, he or she:
(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.
A person commits robbery when he 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.
The Supreme Court in State v. Tvedt examined the legislature's intent as set forth in the statute and found that the unit of prosecution has both a property element and a victim (or their presence) element. Robbery is a crime with a dual nature that cannot be quantified by merely counting victims or the number of items taken.
Tvedt, 153 Wn.2d at 712-13.
Tvedt, 153 Wn.2d at 712-13.
Whether multiple robbery convictions violate double jeopardy is a fact-specific inquiry. In Tvedt, a robber forced a gas station owner and cashier to lie on the floor in the station's office, took a deposit bag full of money, and then forced the station's owner to give him the keys to the owner's truck. The same robber went to a second gas station two days later. The robber forced two station employees to lie on the floor, took a bag full of money, and then took an employee's cellular telephone. On appeal, the defendant contended only one robbery occurred in each gas station. The Tvedt court disagreed, holding the taking of the keys at the first station was separate from the taking of the money, and further, the taking of the bag of money at the second station was separate from the taking of the telephone. In State v. Rupe, the Supreme Court found that a defendant who robbed a bank but forcibly gained possession of the cash from two different bank tellers, each having responsibility and control over the money in their till, committed two robberies and such double convictions did not amount to double jeopardy. But in State v. Molina, the court found only one robbery where a defendant took money from one register in the presence of two bank tellers.
101 Wn.2d 664, 683 P.2d 571 (1984); accord, State v. Bresolin, 13 Wn. App. 386, 534 P.2d 1394 (1975), review denied, 86 Wn.2d 1011 (1976); State v. Penn, 32 Wn. App. 911, 650 P.2d 1111, review denied, 98 Wn.2d 1012 (1982).
83 Wn. App. 144, 920 P.2d 1228 (1996); accord, State v. Johnson, 48 Wn. App. 531, 740 P.2d 337, review denied, 109 Wn.2d 1011 (1987).
Similar to the case at bar, State v. Turner involved the forcible taking of personal property from a married couple. In that case, this court found no double jeopardy violation when the defendant was convicted of two counts of robbery for taking cash from the husband's wallet in one room and items from the wife and her purse in a different room. The Turner court concluded the two robberies were not identical in fact because there were separate takings (though all consisting of community property) from the husband and wife, each having responded to demands made to them personally that they act and furnish the defendant (or his accomplice) with items. Similarly, in State v. Larkin, this court upheld two robbery convictions when a defendant stole a wallet from the husband and jewelry from the wife during a home invasion.
31 Wn. App. 843, 644 P.2d 1224, review denied, 97 Wn.2d 1029 (1982).
Turner, 31 Wn. App. at 846-47.
70 Wn. App. 349, 853 P.2d 451 (1993).
The Supreme Court in Tvedt recognized that similar conduct may lead to incongruous results. Once the unit of prosecution is determined, a factual analysis must be undertaken to determine whether the facts support more than one unit of prosecution. The Tvedt court clarified the unit of prosecution for robbery:
See Tvedt, 153 Wn.2d at 716-17 n. 5.
Tvedt, 153 Wn.2d at 717 (citing State v. Bobic, 140 Wn.2d 250, 266, 996 P.2d 610 (2000)).
[E]ach 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.
Tvedt, 153 Wn.2d at 714-15 (emphasis added).
Tvedt, 153 Wn.2d at 714-15 (emphasis added).
Here, there were technically many takings throughout the night by the intruders from the Rutledges. One unit of prosecution, however, may include only one act or a course of conduct. Multiple convictions are only proper where the facts of the case support multiple units of prosecution having been committed.
In looking to see whether the trial court properly found the two convictions merged, we look at the charging document. Upchurch was charged by second amended information with two counts of first degree robbery. Count I charged him with taking the personal property of Scott Rutledge and count II charged him with taking the same from Lisa Rutledge. Notably, for both counts, Upchurch is described as having taken "a television, guns, jacket and other property, from the person or presence" of either Lisa or Scott, "against such person's will, by use or threatened use of immediate force, violence, and fear of injury. . . ." In other words, the charging document did not allege separate facts as to counts I and II that would support two robbery convictions under Tvedt. Unlike in Turner, the robberies that Upchurch was charged with and convicted of are not separate but rather identical, excepting the victim. And, how many robberies occurred during an incident is not determined by counting victims but instead by determining how many units of prosecution the facts support as charged and proven. Here, the trial court properly found the two counts of robbery merged.
Tvedt, 153 Wn.2d at 717.
We recognize that a panel of this court recently reached the opposite conclusion in an unpublished opinion involving the same facts. State v. Christenson, noted at 135 Wn. App. 1042 (2006).
Dismissal of Juror
We review the removal of a juror during deliberations for an abuse of discretion. Upchurch contends that State v. Elmore is controlling, arguing that there was a reasonable possibility the removal of the juror was because of that juror's views of the sufficiency of the evidence and hence the court erred by not continuing jury deliberations with the original panel intact or declaring a mistrial. Upchurch's reliance on Elmore, however, is misplaced.
State v. Hughes, 106 Wn.2d 176, 204, 721 P.2d 902 (1986); State v. Ashcraft, 71 Wn. App. 444, 461, 859 P.2d 60 (1993).
155 Wn.2d 758, 123 P.3d 72 (2005).
The record demonstrates that Juror No. 5 was excused because she was improperly influenced by outside evidence, discussed that evidence with the other jurors, and denied having done so when asked by the court. The trial court was obligated to dismiss the juror under such circumstances. Dismissal of an unfit juror is governed by RCW 2.36.110:
It shall be the duty of a judge to excuse from further jury service any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect or by reason of conduct or practices incompatible with proper and efficient jury service.
(Emphasis added.)
(Emphasis added.)
When advised that Juror No. 5 had potentially engaged in misconduct, the trial court investigated by questioning not only that juror, but all of the jurors to determine what prejudicial effect, if any, the alleged misconduct might have had on the rest of the jury panel. Moreover, the trial court took particular care to avoid delving into the status of jury deliberations thus far or any of the jurors' views on the sufficiency of the evidence. In fact, the only reason there is any information in the record indicating that Juror No. 5 may have been a holdout is because she insisted on making such information known after the trial court dismissed her for misconduct. The trial court did not err in dismissing the juror after deliberations had already begun.
Sufficiency of Evidence
Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. Circumstantial evidence is no less reliable than direct evidence. And, credibility determinations are for the trier of fact and are not subject to review. We must defer to the jury on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. Given these considerations, we find the record presents sufficient evidence to affirm Upchurch's convictions for first degree kidnapping and second degree assault.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
Thomas, 150 Wn.2d at 874-75.
Statement of Additional Grounds
Upchurch filed a pro se statement of additional grounds alleging the trial court improperly admitted hearsay testimony from law enforcement officials in violation of his constitutional rights. Upchurch also claims he received ineffective assistance of counsel because of counsel's failure to object to the alleged hearsay.
Neither of these claims has any merit. First, the testimony of the police investigators was not hearsay. The officers' testimony was relevant and properly admitted after the trial court carefully considered the issue at a CrR 3.5 hearing. Second, to establish that counsel was ineffective, a defendant must prove that counsel's performance was deficient and, that as a result, the defendant was prejudiced. If either part of the test is not satisfied, an ineffective assistance of counsel claim fails. Upchurch's first assigned counsel cannot plausibly be considered deficient in her performance as counsel for failure to object to the contested testimony as hearsay when it clearly was not hearsay. Thus, Upchurch has failed to satisfy the first part of the test for any ineffective assistance of counsel claim.
See ER 801(c), 802.
State v. Townsend, 142 Wn.2d 838, 843, 15 P.3d 145 (2001).
State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
For the above reasons, we affirm.