Opinion
No. 52815-7-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No. 03-1-00668-1. Judgment or order under review. Date filed: 07/10/2003. Judge signing: Hon. George Newton Bowden.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Maureen Marie Cyr, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Jeff Walksontop — Doc #265743 (Appearing, Pro Se)
Counsel for Respondent(s), Royce Scott Buckingham, Attorney at Law, Whatcom Co Prosc Atty Ofc, 311 Grand Ave, Bellingham, WA 98225-4048.
Hilary A. Thomas, Whatcom County Prosecutors Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
A person is guilty of a criminal attempt when he or she takes a substantial step with the intent to commit a specific crime. Evidence that appellant Jeffrey Walksontop approached someone at an ATM, pressed a concealed object against the man, told the man that he had a weapon, and then asked for money was sufficient to establish that Walksontop took a substantial step with the intent to commit robbery by displaying what appeared to be a firearm or other deadly weapon. Accordingly, we affirm Walksontop's conviction for attempted first degree robbery.
Jeffrey Walksontop was charged with one count of attempted first degree robbery. At trial, Norman Pendergraft testified that at about 6:30 a.m. on May 14, 2003, he stopped to withdraw $20 from an ATM machine in downtown Bellingham. Pendergraft noticed a man, later identified as appellant Walksontop, standing about a half-block away. As Pendergraft was putting the cash into his wallet, he saw Walksontop running up behind him. Walksontop appeared to be holding some object underneath an unfolded newspaper. Walksontop then pressed the object against Pendergraft's body and said, "I've got a weapon, I want your money."
Pendergraft testified that he was used to common panhandling but that this incident "with him being so close to me telling me he had a weapon and wanting my money, that was beyond anything that I have ever experienced downtown." Report of Proceedings (July 7, 2003), at 19. After Pendergraft put his wallet in his pocket, Walksontop again asked for money and said that he had a weapon.
Pendergraft explained that he was "pretty nervous" and that "my stomach twisted and there was fear there because I didn't know what the fellow had under the newspaper or what his immediate intentions were." RP, at 43. At this point, Pendergraft decided that he "wasn't going to bend down to the fear factor" and attempted to escape from Walksontop by walking around a nearby fountain.
Pendergraft went to a nearby espresso shop, where he intended to call the police. Walksontop followed Pendergraft into the espresso shop and continued to ask for money. When Walksontop put down the unfolded newspaper in the shop, Pendergraft saw a rolled-up newspaper underneath. Pendergraft then walked out of the shop, followed closely by Walksontop. Pendergraft spoke briefly to Walksontop, in an effort to "try to keep things at a certain level . . . so I could get away from that situation." When Walksontop asked whether he would be arrested, Pendergraft informed him that the police would be arriving shortly. Pendergraft then got into his truck and drove a short distance. After parking the truck, he returned to the espresso shop, where someone called the police.
After arresting Walksontop, police advised him of his rights. Walksontop, who exhibited some signs of intoxication, told the officers that he had just been "teasing" Pendergraft and that he had held a newspaper on Pendergraft's back and asked for money.
The jury found Walksontop guilty as charged, and he received a standard-range sentence.
Walksontop first contends that the evidence was insufficient to support his conviction for attempted first degree robbery. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the offense 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 reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. A criminal attempt consists of two elements: (1) the intent to commit a specific crime, and (2) a substantial step toward the commission of that crime. State v. Chhom, 128 Wn.2d 739, 742, 911 P.2d 1014 (1996). A "substantial step" is conduct that is "strongly corroborative" of the actor's criminal intent and not mere preparation. State v. Workman, 90 Wn.2d 443, 451, 584 P.2d 382 (1978). In order to convict Walksontop of attempted first degree robbery as charged in this case, the State was therefore required to prove, among other things, that he intended to commit robbery by "display[ing] what appears to be a firearm or other deadly weapon." RCW 9A.56.200(1)(a)(ii).
In Washington, the defendant can commit first degree robbery by displaying what appears to be a deadly weapon even if the defendant does not actually have a deadly weapon or the victim does not see the weapon. See State v. Kennard, 101 Wn. App. 533, 539, 6 P.3d 38 (2000). But a mere verbal threat to use a deadly weapon during the commission of a robbery must be accompanied by some "physical manifestation" indicating the presence of a weapon in order to satisfy the display element. State v. Scherz, 107 Wn. App. 427, 435, 27 P.3d 252 (2001) (defendant's mere statement that he had a weapon was insufficient to support conviction for first degree robbery). Relying primarily on Deshields v. State, 706 A.2d 502 (Del. 1998), Walksontop argues that the statutory display element also requires the State to prove that the victim "actually believed" the defendant was armed with a firearm or other deadly weapon. Brief of App., at 7. Because Pendergraft testified that he had "no idea" what was concealed under the newspaper, Walksontop maintains that the evidence was insufficient to establish this requirement.
As the State notes, no Washington case has imposed the requirement urged by Walksontop. But we do not, in any event, address the issue because Walksontop's arguments are based on the elements of the completed crime of first degree robbery. Indeed all of the decisions that Walksontop relies upon for his argument involved prosecutions for first degree robbery. Because Walksontop was charged with attempted first degree robbery, the State was not required to prove the elements of the completed offense. Consequently, the issue on appeal is whether the evidence was sufficient to establish that Walksontop took a "substantial step" toward completion of the intended crime.
See State v. Henderson, 34 Wn. App. 865, 664 P.2d 1291 (1983) (evidence that the defendant indicated the presence of a weapon in his pocket was sufficient to establish display element of first degree robbery); State v. Kennard, 101 Wn. App. 533, 6 P.3d 38 (2000) (evidence that the defendant told bank teller that he had a gun, patted his hip, and then told the teller he knew where she lived was sufficient to establish display element of first degree robbery); In re Personal Restraint of Bratz, 101 Wn. App. 662, 5 P.3d 759 (2000) (defendant's threat to "blow up the bank," unaccompanied by physical manifestation indicating presence of a weapon, was insufficient to establish display element of first degree robbery); State v. Scherz, 107 Wn. App. 427, 27 P.3d 252 (2001) (defendant's statement to bank teller that he had a hand grenade was insufficient to establish display element of first degree robbery).
Here, the evidence was undisputed that Walksontop hurriedly approached Pendergraft at an ATM and pressed a concealed, rolled-up newspaper against Pendergraft. Walksontop then told Pendergraft that he had a weapon and asked for money. Viewed in the light most favorable to the State, a rational trier of fact could find the foregoing circumstances, beyond a reasonable doubt, strongly corroborative of Walksontop's intent to rob Pendergraft by displaying what appeared be a firearm or other deadly weapon. Consequently, the evidence was sufficient to support Walksontop's conviction for attempted first degree robbery, whether or not Pendergraft subjectively believed that Walksontop had a weapon. See State v. Majors, 82 Wn. App. 843, 919 P.2d 1258 (1996) (defendant's threat that "[t]his is a real . . . gun. Get in the car now or I'll blow your head off" constituted "substantial step" toward attempted first degree kidnapping, even though the BB gun was not capable of inflicting deadly force and victim did not believe the defendant could carry out his threat).
Walksontop next contends that the deputy prosecutor committed reversible misconduct by stating, during rebuttal closing argument, that "[t]he victim thought it was a deadly weapon" and that "[a]t one point it appeared to be a deadly weapon to [the victim]." Walksontop argues that the comments misrepresented the evidence and denied him a fair trial because Pendergraft testified that he had "no idea" what the concealed object was. But Walksontop raised no objection to the challenged comments. Consequently, he has waived any error unless the misconduct was so flagrant and ill-intentioned that no curative instruction could have obviated the resulting prejudice. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991). Here, a curative instruction could have neutralized any unfair prejudice resulting from the brief remarks, and Walksontop has made no showing of any likelihood that the alleged misconduct affected the verdict.
Moreover, the comments did not constitute misconduct. Although Pendergraft did not expressly testify that he thought Walksontop was concealing a deadly weapon, he acknowledged that he was "actually a little scared" during the initial encounter, that his "stomach [was] twisted," and that "there was fear." Viewed in context, Pendergraft's testimony supported a reasonable inference that he believed Walksontop had a deadly weapon. Accordingly, the deputy prosecutor's remarks were not improper and fell within the wide latitude afforded the deputy prosecutor during closing argument to draw and express reasonable inferences from the evidence. See State v. Brown, 132 Wn.2d 529, 566, 940 P.2d 546 (1997).
Affirmed.
COLEMAN, KENNEDY and APPELWICK, JJ.