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State v. Vance

The Court of Appeals of Washington, Division Two
Oct 9, 2007
141 Wn. App. 1005 (Wash. Ct. App. 2007)

Opinion

No. 35302-4-II.

October 9, 2007.

Appeal from a judgment of the Superior Court for Thurston County, No. 04-1-01408-9, Daniel J. Berschauer, J., entered September 6, 2006.


Affirmed by unpublished opinion per Houghton, C.J., concurred in by Bridgewater and Hunt, JJ.


Carl Wayne Vance appeals his convictions of first degree unlawful possession of a firearm and first degree burglary, and the firearm enhancements added to his convictions of four counts of first degree kidnapping, one count of first degree robbery, and one count of first degree burglary. He argues that there was insufficient evidence to support the convictions and sentencing enhancements because no firearm was in evidence, and it was not proved that an actual firearm was used during the commission of the crimes. We affirm.

FACTS

On the night of December 23 leading into the morning of December 24, 2002, a robbery occurred at the Bayview Thriftway in Thurston County. Four employees were in the store that night: Kathy Gallarda-Delacruz; Casimioro "Casey" Delacruz, who was also Kathy's husband; Brian Sandwick; and Lana Kalivoda.

The robber was described as wearing a fencing mask and dark clothing. He had been hiding in the meat department, where Sandwick was stationed. As the store neared closing, the robber approached Sandwick with a firearm, informing him that he was being robbed and forcing him to kneel. Sometime later, Kalivoda came upon Sandwick and the robber in the meat department and was also forced to kneel. The robber then held the firearm to Sandwick's chest and forced the two to walk toward the front of the store, telling them that no one would be hurt as long as they cooperated.

In the process of moving to the front of the store, they came upon Casey, who was told not to run unless he wanted his friend to die. The robber then had the employees lure the fourth and final employee, Kathy, to the aisle where the robber was holding the rest of the group captive.

Continuing to hold the firearm to Sandwick's chest, the robber forced the group to wait quietly until the store was empty of customers, then to lock the front doors and move to the office where the safe was located. He had Kathy open the safe, from which he stole $21,509. He tied up the employees; poured ammonia over the floor to cover the scent of his tracks; and exited out of a back door, instructing the employees not to struggle for at least 10 or 15 minutes after he left. Sometime later, the employees freed themselves. They discovered that the office telephone lines had been cut, but called the police from another working phone elsewhere in the store.

When police arrived on the scene, they discovered a black fencing mask left on the sidewalk about a half block away from the store. Investigators were able to extract DNA from the mask, which was matched to a DNA sample from Vance taken in 1991. After taking him into custody, police took a second DNA sample from Vance's cheek, which also matched the DNA taken from the mask.

On December 8, 2005, the State filed an amended information charging Vance with one count of first degree robbery while armed with a deadly weapon, four counts of first degree kidnapping while armed with a deadly weapon, one count of first degree unlawful possession of a firearm, and one count of first degree burglary with a deadly weapon.

A two-day jury trial was held. At the close of the evidence, Vance made a motion to dismiss all charges requiring the use of a firearm to convict him, arguing that because the firearm allegedly used in the commission of the crimes was not in evidence, it could not be established that a real firearm had actually been used. The trial judge found that there was sufficient evidence by which a reasonable juror could have been convinced that the robber possessed an actual firearm and denied the motion to dismiss.

The jury was instructed that, to convict Vance of first degree unlawful possession of a firearm, it must in part find that he knowingly had a firearm in his possession or control; that to convict him of first degree burglary, it must in part find that he was armed with a firearm during commission of that crime; and that for purposes of adding a special verdict to each count, it must find that he was armed with a firearm during the commission of each crime. The jury found Vance guilty on all counts, including all firearm enhancements. He appeals.

ANALYSIS

Vance assigns error to his convictions for counts requiring possession of an actual firearm but not to his convictions for crimes where the relevant element was met as long as he displayed something appearing to be a firearm. RCW 9.41.040(1)(a) ; RCW 9A.52.020(1). Likewise, Vance assigns error to the firearm enhancements because possession of an actual firearm is required to impose those sentencing enhancements. See RCW 9.94A.602. See also State v. Faust, 93 Wn. App. 373, 378-80, 967 P.2d 1284 (1998), for the proposition that to impose an enhanced penalty, the State must prove the presence of a firearm as a gun in fact and not a toy gun or gun-like object.

Under RCW 9.41.040(1)(a), "A person . . . is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted . . . of any serious offense."

Under RCW 9A.52.020(1), "A person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight therefrom, the actor . . . is armed with a deadly weapon."

RCW 9.94A.602 sets forth, "In a criminal case wherein there has been a special allegation and evidence establishing that the accused . . . was armed with a deadly weapon at the time of the commission of the crime . . . the jury shall, if it find[s] the defendant guilty, also find a special verdict as to whether or not the defendant . . . was armed with a deadly weapon at the time of the commission of the crime."

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 the essential elements of the crime charged beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State's evidence and all inferences that can reasonably be drawn therefrom. Salinas, 119 Wn.2d at 201. On review, circumstantial evidence and direct evidence carry equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). We do not review the jury's credibility determinations on appeal. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997).

In this case, the jury heard testimony from each of the four employees that the robber had a firearm. Kathy testified that the robber held a gun to Sandwick's heart and described it as an older looking handgun with a long skinny barrel. Kalivoda testified that the robber obtained information from her about the store's nighttime operations while holding a semiautomatic gun in his hand. She explained that the robber showed her that the gun was real by cocking it, pulling back the slide, and showing her a bullet in the chamber. She testified that when the robber instructed her to lock the front doors, he told her not to run because she had three people's lives in her hands. She also testified that Kathy's first reaction upon seeing the robber was to put her hands in the air.

Sandwick testified that the robber held a gun to his chest as they walked from the meat department through the aisles. The robber also told him not to "jerk him around" and that if he cooperated, no one would be hurt.

Casey testified that he saw the robber holding a gun on Sandwick and described the gun as being like a German Ruger, that it was all black, and that it was a pistol. He testified that the robber told him not to run unless he wanted his friend to die and that the robber also asked him, "If I shoot you now, who is going to miss you?" to which Casey replied that his children would miss him and that the robber could have anything he wanted. I RP (Jury Trial) at 75.

In addition to their testimony about the robber's use of a firearm, the account was otherwise consistent from all four employees as to how the robbery took place, including their description of the robber, what he said to them, the manner and order in which he moved them through the store, how he carried out the actual robbery itself, and how he exited the scene.

The testimony from police officers regarding the evidence found at the scene was also consistent with the employees' descriptions of what took place. Officer Houser testified to finding binding material in the form of ropes and plastic zip ties, liquid on the floor, and an empty ammonia bottle outside a fire door exit, and that, on his arrival at the scene, four store employees told him that they had been tied up and that the store had been robbed at gunpoint. From this evidence, the jury could infer that the employees' recall of the events of the robbery was accurate and reliable, including the fact that a real firearm was used on them.

Finally, the circumstances of the robbery indicated an inference that the robber had a real firearm. He was able to control four people at once, moving them throughout the store, commanding them to perform certain activities, and eventually tying them up. All four were sufficiently in fear that not one of them attempted to run or to try to stop the robber, even though at least one of the employees was described as being significantly larger in size than the robber.

On review, circumstantial evidence carries as much weight as direct evidence. Goodman, 150 Wn.2d at 781. Viewed in the light most favorable to the State, there was sufficient circumstantial evidence by which the jury could have inferred that Vance possessed a real firearm while carrying out his crimes, even though an actual firearm was not in evidence during the trial. The evidence was sufficient to support his convictions for first degree robbery, for unlawful possession of a firearm, and to support the special verdicts imposed for his use of a firearm in four counts of first degree kidnapping, one county of first degree robbery, and one count of first degree burglary.

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

BRIDGEWATER, J., and HUNT, J., concur.


Summaries of

State v. Vance

The Court of Appeals of Washington, Division Two
Oct 9, 2007
141 Wn. App. 1005 (Wash. Ct. App. 2007)
Case details for

State v. Vance

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. CARL WAYNE VANCE, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Oct 9, 2007

Citations

141 Wn. App. 1005 (Wash. Ct. App. 2007)
141 Wash. App. 1005