Opinion
Nos. 35544-2-II; 35546-9-II.
March 25, 2008.
Appeals from a judgment of the Superior Court for Thurston County, No. 06-1-01529-4, Richard A. Strophy, J., entered November 9, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Penoyar, J.
In this consolidated appeal, Nicholas James McCabe and Johnnie Lewes Thomas appeal their convictions for second degree robbery. We affirm both convictions.
FACTS
The State concedes to McCabe's and Thomas's versions of the facts.
On August 23, 2006, Randall Moore was in Olympia. He withdrew $100 from a U.S. Bank ATM. He used some of the money to purchase pills. Moore had been drinking and was under the influence of three different types of drugs, including Valium and Vicodin. Nevertheless, he wanted to purchase crack cocaine so he went back to the same cash machine to withdraw an additional $100.
ATM stands for automated teller machine.
Moore then got into the back seat of a compact car to purchase drugs from the people in the car, whom he did not know. Billot Miller, Nicholas McCabe, and Johnnie Thomas were the passengers while Amy Stabley-Cate was driving. They went to Priest Point Park in Olympia to conduct the deal. The three men demanded his money, eventually taking it by force. As Moore ran across the park for help, Stabley-Cate drove Miller, McCabe, and Thomas, to a mini mart to get gas.
Meanwhile, Moore had contacted the police who obtained a description of the car and the persons involved in the incident. The police quickly located the car and its occupants at the mini mart. Thomas initially denied any knowledge of the incident, but later told police that Miller and McCabe had robbed Moore while he watched. The investigating officers found methamphetamine in a black pouch and a U.S. Bank ATM receipt in Stabley-Cate's car. They found a second U.S. Bank ATM receipt on Thomas's person.
The police detained Miller, McCabe, and Thomas. In a show-up identification, Moore identified all three men as the persons who took his money. On August 25, 2006, the State charged Miller, McCabe, and Thomas as a principal or accomplice of second degree robbery of Randall Moore, in violation of RCW 9A.56.210(1).
Moore could not identify any of the men, McCabe, Thomas, or Miller, during trial.
The State granted Stabley-Cate immunity on November 1, 2006. During the consolidated jury trial, Stabley-Cate testified. She maintained that Miller, McCabe, and Thomas observed Moore, who appeared to be impaired, in Olympia, and decided to rob him. She testified that they picked up Moore, took him to Priest Point Park, where the three men worked as a team to take Moore's money by force. Stabley-Cate also testified that she was sitting in the car and it was difficult to see exactly what was happening because the alleged robbery occurred outside.
During her testimony, the State admitted the order granting immunity as exhibit 9.
Throughout cross-examination, defense counsel quizzed Stabley-Cate about her grant of immunity and implied she was not truthfully testifying. After her testimony, the State moved to introduce under Evidence Rule 801(d)(1)(ii) statements that Stabley-Cate had made to Olympia police officer Brenda Anderson on the night of the incident. The State argued that these prior consistent statements were admissible to rebut the vigorous cross-examination, implying recent fabrication in her story due to the immunity the State granted her on November 1, 2006. After briefing and arguments, the trial court found Stabley-Cate's August 23, 2006 statements were admissible under ER 801(d)(1)(ii). The State proceeded to admit Stabley-Cate's prior consistent statement through the testimony of Officer Anderson.
The jury found Thomas and McCabe guilty as charged. Both Thomas and McCabe timely filed notices of appeal on November 9, 2006. Their cases have been consolidated.
ANALYSIS I. Prior Consistent Statement
McCabe and Thomas both argue that the trial court erred when it admitted a statement that witness Stabley-Cate made to a police officer on the day of the incident. First, McCabe and Thomas contend that their cross-examination did not rise to the level of an expressed or implied claim that Stabley-Cate had recently fabricated her story; thus, ER 801(d)(1)(ii) was not properly triggered. Second, they contend that Stabley-Cate's statement is not admissible under ER 801(d)(1)(ii) because she understood the legal consequences of her statements to the police officers on August 23, 2006. Thus, they contend that Stabley-Cate's statement was hearsay and thus not admissible. These arguments fail.
Hearsay is a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." ER 801(c). ER 801(d)(1) provides that a statement is not hearsay if:
The declarant testifies at the trial or hearing and is subject to cross[-]examination concerning the statement, and the statement is . . . (ii) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. . . .
When the conditions of ER 801(d)(1)(ii) are present and the witness's prior consistent statements were made before the date of facts from which the motive to falsify can be inferred, the prior consistent statement is relevant and may be admitted. State v. Harper, 35 Wn. App. 855, 857, 670 P.2d 296 (1983), review denied, 100 Wn.2d 1035 (1984). Thus, there must be an express or implied charge of recent fabrication or improper influence or motive. See Harper, 35 Wn. App. at 858. In other words, a witness's prior consistent statements cannot be introduced merely to corroborate or bolster her testimony. Harper, 35 Wn. App. at 858. While "mere cross-examination of the witness cannot alone justify admission of prior consistent statements," a vigorous cross-examination may trigger ER 801(d)(1)(ii). State v. Dictado, 102 Wn.2d 277, 290, 687 P.2d 172 (1984); see 5B Karl B. Tegland, Washington Practice: Evidence § 801.25, at 374 (5th ed. 2007). Finally, admissibility of evidence under ER 801(d)(1)(ii) is within the trial court's discretion and will not be reversed absent a showing of manifest abuse of discretion. Dictado, 102 Wn.2d at 290.
McCabe and Thomas maintain that their cross-examination of StableyCate did not create a plausible inference that she changed her story. They criticize the trial court's reliance on State v. Thomas, 150 Wn.2d 821, 83 P.3d 970 (2004), to find their cross-examination created the requisite inference of fabrication and ultimately to admit her August 23, 2006 statement.
In Thomas, the defendant suggested during cross-examination that a crucial witness for the State had motive to fabricate testimony due to a favorable plea agreement. Thomas, 150 Wn.2d at 865-66. The defendant also emphasized inconsistencies in the witness's testimony and the fact that she divorced the defendant in order to testify against him. Thomas, 150 Wn.2d at 866. Although the defendant argued he was merely trying to establish that the witness's statements to police were inconsistent with her testimony, his argument did not persuade the court. Thomas, 150 Wn.2d at 866. The Washington Supreme Court held that the defendant's cross-examination was sufficient to trigger ER 801(d)(1)(ii) and found that the trial court properly admitted the witness's prior consistent statements to rebut the defendant's attacks on her credibility which arose from the suggestive implication of recent fabrication. Thomas, 150 Wn.2d at 867.
Here, the defendants' cross-examination of Stabley-Cate was more suggestive and accusatory than that complained of in Thomas. During cross-examination, McCabe's defense counsel repeatedly referred to Stabley-Cate's immunity. He asked her four times whether she would "say anything" to avoid being charged with robbery or going to jail. 3 RP at 369. In addition, Miller's defense counsel also referenced StableyCate's immunity while simultaneously asking her two separate times whether she was testifying truthfully at trial. Through this vigorous cross-examination, the defense counsel strongly implied that Stabley-Cate's in-court testimony was influenced by her immunity, and that she submitted to the State in order to avoid prosecution. Defense counsel impliedly charged Stabley-Cate with a recent fabrication of testimony. Therefore, the trial court properly found that Miller, McCabe, and Thomas's cross-examination was sufficient to trigger ER 801(d)(1)(ii). See Thomas, 150 Wn.2d at 867.
Nevertheless, McCabe argues that Stabley-Cate's prior consistent statements were inadmissible unless she made them under circumstances "indicating that the witness was unlikely to have foreseen the legal consequences of . . . her statements." Br. of Appellant (McCabe) at 22 (citing State v. Makela, 66 Wn. App. 164, 169, 831 P.2d 1109, review denied, 120 Wn.2d 1014 (1992)). There is no evidence that Stabley-Cate foresaw the legal consequences of her statement to Officer Anderson on the night of the incident. There is no evidence in any sense that she was fortifying herself to meet an expected impeachment at trial. The evidence was directly opposite; it is apparent that she was not anticipating testifying at all at the trial — she was arrested on a warrant on October 31, 2006, and then signed an immunity agreement for her testimony.
In Makela, the appellant did not contend that the witness's statements were made under circumstances indicating that the witness was likely to have foreseen the legal consequences of her statements. Makela, 66 Wn. App. at 169 n. 4. Therefore, there is no analysis applicable to that rule in Makela.
Stabley-Cate gave her statement to Officer Anderson on the night of August 23, 2006, within a few hours of the incident. She told Officer Anderson that she knew that Miller, McCabe and Thomas were going to "jack" Moore and that she knew they were going to do "something bad." 4 RP at 436; 3 RP at 362. She admitted that she did not warn Moore that the three men planned to rob and/or harm him. She also admitted that she drove Miller, McCabe, Thomas, and Moore to Priest Point Park that evening. Stabley-Cate went on to describe the incidents in detail to Officer Anderson. Stabley-Cate's version of the events in her statement to Officer Anderson mirrored her testimony during trial. There is simply no evidence that Stabley-Cate, an unsophisticated 18-year-old witness, foresaw the legal consequences of her statements to Officer Anderson on the evening of August 23, 2006. Therefore, the rule set forth in Makela, does not preclude admission of Stabley-Cate's prior consistent statement at trial. See Makela, 66 Wn. App. at 169.
In conclusion, we hold that the trial court properly admitted Stabley-Cate's prior consistent statement under ER 801(d)(1)(ii). Before admitting the statement, it heard argument from counsel, considered Thomas, and reviewed Stabley-Cate's direct and cross-examination testimony. The trial court then admitted Stabley-Cate's prior consistent statement through the testimony of Officer Anderson, the officer who took the statement on the night of the incident. Based on the comprehensive record before this court indicating defense counsel's vigorous cross-examination implying that Stabley-Cate fabricated her testimony due to her grant of immunity, the trial court did not err in finding that ER 801(d)(1)(ii) was sufficiently triggered. Moreover, the record is devoid of evidence establishing that Stabley-Cate foresaw the legal consequences of talking with Officer Anderson on August 23, 2006 after the incidents. We hold that the trial court did not abuse its discretion when it admitted Stabley-Cate's prior consistent statement to rebut the inference that her testimony in trial was affected.
II. Sufficient Evidence Supporting Conviction of Second Degree Robbery
Thomas also contends there was insufficient evidence at trial to prove beyond a reasonable doubt that Thomas was guilty of second degree robbery. But his argument is unconvincing.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits a rational trier of fact to find the essential elements of a crime beyond a reasonable doubt. State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence is as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). An appellate court defers to the trier of fact regarding a witness's credibility or conflicting testimony. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990) (citing State v. Casbeer, 48 Wn. App. 539, 542, 740 P.2d 335, review denied, 109 Wn.2d 1008 (1987)).
"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." RCW 9A.56.190. "A person is guilty of robbery in the second degree if he commits robbery." RCW 9A.56.210(1).
Here, the State met its burden of establishing that Thomas was guilty of second degree robbery beyond a reasonable doubt. First, Moore testified that he had been robbed and he positively identified Miller, McCabe, and Thomas on the night of the incident as the assailants. Second, Stabley-Cate testified that Miller, McCabe, and Thomas planned to take Moore's money from him. She also testified that she observed, although her view was obstructed, Miller, McCabe, and Thomas engage in a confrontation with Moore at Priest Point Park. Moreover, Stabley-Cate testified that she observed Thomas punching or kicking Moore and then saw Thomas and Miller grab the money from Moore's pockets. Her statements to Officer Anderson shortly after the incident are consistent with this testimony.
Although Thomas and Miller testified that the incident was an unsuccessful drug deal gone sour rather than a robbery, the jury found testimony from the other witnesses more credible. And under well-established case law, credibility determinations are not subject to review. Camarillo, 115 Wn.2d at 71. Likewise, although Moore testified that he was intoxicated during the events of August 23, 2006, the jury found his testimony more credible than Thomas's and Miller's. Drawing all reasonable inferences from the evidence in favor of the State and interpreting them against Thomas, there was sufficient evidence for the jury to find Thomas guilty of second degree robbery. Therefore, we affirm his conviction.
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.
VAN DEREN, A.C.J. and PENOYAR, J., concur.