Opinion
No. 24065-7-III.
May 25, 2006.
Appeal from a judgment of the Superior Court for Spokane County, No. 02-1-02773-4, Neal Q. Rielly, J., entered April 6, 2005.
Counsel for Appellant(s), Julia Anne Dooris, Gemberling Dooris Ladich, PO Box 20008, Spokane, WA 99204-0008.
Janet G. Gemberling, Gemberling Dooris Ladich PS, PO Box 20129, Spokane, WA 99204-7129.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Affirmed by unpublished opinion per Kato, J., concurred in by Brown and Kulik, JJ.
Mark Eugene Miller appeals his conviction and sentence for one count of first degree robbery. He contends the evidence was insufficient to support the conviction and the court miscalculated his offender score. We affirm.
On October 10, 2002, Daniel Peterson was delivering paint to an apartment when he was approached by Mr. Miller, who asked him if he was moving in. Mr. Peterson said he was just delivering paint. When Mr. Peterson returned to the apartment with the last box of paint, Mr. Miller hit him on the upper lip with his fist. Mr. Miller ran toward Mr. Peterson's car and tried to get in, but the doors were locked.
Mr. Miller then went to the apartment of an acquaintance, Donald Green. When Mr. Green opened the door, Mr. Miller told him he needed help and someone was trying to break into his apartment. Mr. Miller entered Mr. Green's apartment whereupon he pulled a cell phone out of his pocket and called 911. Mr. Miller told the 911 operator he had been robbed, but refused to provide his name or give the operator any details.
After Mr. Miller called 911, Mr. Green told him he was leaving to go to the bank. Mr. Miller asked him for a ride. While in Mr. Green's van, Mr. Miller began accusing him of stealing his wallet and identification. Mr. Green continued driving for a few blocks and pulled into the bank's driveway. Mr. Miller started yelling at Mr. Green `to get the hell out of there.' Report of Proceedings (RP) at 66. Mr. Miller put his left foot on the gas pedal. He told Mr. Green he would beat him up if he did not get out of the bank parking lot.
Mr. Green drove through the parking lot toward a fast food restaurant, where he was able to stop his van. Mr. Miller began yelling out the window Mr. Green was a child molester and was trying to steal his van. Mr. Miller then hit Mr. Green with his fists. He also slapped and kicked him. When Mr. Miller reached into his back pocket for something, Mr. Green took off his seatbelt, opened the door, and fell out of the van. Mr. Miller slid over to the driver's seat and slammed the door shut. Mr. Green got up off the ground and started walking back toward his van, but Mr. Miller said he would kill him if he came over to the van. He then started the van and drove out of the parking lot.
Mr. Miller was arrested and charged with one count of attempted first degree robbery for the incident involving Mr. Peterson and one count of first degree robbery for the incident involving Mr. Green.
At trial, Mr. Miller testified he suffered from panic attacks and that `a very large man' with a lot of money was out to get him. RP at 142-43. Mr. Miller said he had a panic attack when he asked Mr. Peterson, `I — I know I've seen you somewhere before. I think I know who you are. You're him, aren't you?' RP at 137. Mr. Peterson did not respond. Mr. Miller said he felt threatened and scared. He hit Mr. Peterson out of fear. Mr. Miller then testified that while he was in Mr. Green's car, he suffered another panic attack. He believed Mr. Green was plotting to kill him. Mr. Miller said he did not steal Mr. Green's van. He took the van because he was scared and `wanted to get out of there.' RP at 169-70.
The defense called Dr. Clay Jorgensen, a clinical psychologist, who testified Mr. Miller had severe problems with anxiety and delusional thinking or paranoia. He said Mr. Miller's primary mental disorder was a delusional disorder, which played a role in triggering his panic attacks. Dr. Jorgensen opined Mr. Miller's anxiety and delusional-paranoid thinking had the impact of preventing him from being able to formulate the intent to commit a robbery.
The State then called rebuttal witness Dr. Daniel Lord-Flynn, also a clinical psychologist. He said Mr. Miller did not suffer from any longstanding or enduring mental disease or defect. Dr. Lord-Flynn testified Mr. Miller's psychotic episodes were closely correlated with the use of controlled substances, such as methamphetamine or cocaine. Dr. Lord-Flynn opined Mr. Miller was able to formulate the intent to commit the crimes of attempted first degree robbery and first degree robbery.
The jury found Mr. Miller guilty of first degree robbery, but not guilty of attempted first degree robbery. At sentencing, the court calculated Mr. Miller's offender score as 10, including a 1982 conviction for attempted second degree burglary, even though Mr. Miller argued the conviction had washed out. Based on an offender score of 10, the court sentenced Mr. Miller to a standard range sentence of 144 months. This appeal follows.
Mr. Miller contends the evidence was insufficient to support his conviction. In reviewing a sufficiency of the evidence challenge, the test is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). It is the role of the trier of fact, not the appellate court, to resolve conflicts in the testimony and to evaluate the credibility of witnesses and the persuasiveness of the evidence. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989).
A person commits the crime of robbery if he unlawfully takes personal property from another person against that person's will and uses force to retain possession of the property or to prevent or overcome resistance to the taking. RCW 9A.56.190. The statutory elements for robbery require the defendant to have the `intent to deprive the victim of property.' State v. Decker, 127 Wn. App. 427, 431, 111 P.3d 286 (2005), review denied, 156 Wn.2d 1012 (2006); State v. Corwin, 32 Wn. App. 493, 497, 649 P.2d 119, review denied, 98 Wn.2d 1004 (1982). A person commits first degree robbery if, in the commission of a robbery or immediate flight therefrom, he inflicts bodily injury. RCW 9A.56.200(1)(a)(iii).
Mr. Miller argues he was acting under the influence of paranoid delusions and thus could not act with the requisite intent to commit the crime of first degree robbery. But Dr. Lord-Flynn testified he believed Mr. Miller was able to formulate that intent. Mr. Green said Mr. Miller hit him with his fists, slapped and kicked him. He said he fell out of the van and Mr. Miller slid over to the driver's seat. Mr. Miller told him he would kill him if he came over to the van. Mr. Miller started the van and drove out of the parking lot. Based on this evidence, the jury could infer that Mr. Miller intended to deprive Mr. Green of his van. The evidence was sufficient to support the first degree robbery conviction.
Mr. Miller next contends the court erred by including his 1982 conviction for attempted second degree burglary in his offender score. He argues the conviction `washed out' under the provisions of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW.
In 1997 and 2002, however, the legislature amended the SRA to eliminate the `wash out' provisions relied upon by Mr. Miller. In State v. Varga, 151 Wn.2d 179, 86 P.3d 139 (2004), our Supreme Court held that the 2002 amendments `properly and unambiguously require that sentencing courts include defendants' previously `washed out' prior convictions when calculating defendants' offender scores at sentencing for crimes committed on or after the amendments' effective date.' Id. at 183.
Here, Mr. Miller's current offense was committed in October 2002, several months after the effective date of the amendments. Id. The 2002 amendments thus apply to the calculation of his offender score. The court properly included the 1982 conviction in his offender score.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and KULIK, J., concur.