Opinion
No. 30486-4-II
Filed: November 9, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-1-05832-1. Judgment or order under review. Date filed: 06/06/2003. Judge signing: Hon. James R Orlando.
Counsel for Appellant(s), Linda J. King, Attorney at Law, 9 St Helens Ave, Tacoma, WA 98402-2600.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
Anthony Ralston Robinson appeals his convictions of one count of robbery, one count of arson, and one count of unlawful possession of an incendiary device. He argues that the evidence was insufficient to prove arson and contends that he was denied a fair trial because of prosecutorial misconduct at closing argument. Robinson also argues that his second degree arson and possession of an incendiary device convictions should have been treated as the `same criminal conduct' in calculating his offender score. We find no reversible error and, therefore, affirm.
FACTS
On December 16, 2002, at about 8:44 p.m., a person entered the Checker 2 Shell gas station and robbed the store of approximately $300 in cash. Sang Kwak, the store's owner, was the clerk on duty at that time. On December 17, 2002, the Tacoma Police Department returned to the same Shell station in response to an arson call. Someone had used a molotov cocktail to set the Shell station sign on fire. The next day, police arrested Anthony Ralston Robinson for both crimes. The State charged Robinson with first degree robbery, second degree arson, and possession of an incendiary device. A jury convicted him of all charges.
At trial, Kwak testified that he knew the robber was Robinson because of the sound of his voice, the clothes he wore, the words he chose (including `Don't move, big guy'), and a distinctive skin condition on his hands. Report of Proceedings (RP) at 192-93. Kwak knew Robinson because he frequented the Checker 2 Shell `more than ten times a day.' RP at 191. Robinson sold drugs around the store and would often come in to ask for matches or change and to buy cigarettes. When Robinson entered the store, he always said `What's up, big guy.' RP at 193.
Kwak testified that on the night of the arson, a `passerby' told him that the gas station sign was on fire. RP at 196. The sign was large, lighted, and had the Shell logo and price listings for fuel. It was located between a public phone booth and the gas station building and pumps. Within minutes after Kwak learned of the fire, a Shell station neighbor, Andrew Wooley, told him `Tony' (Robinson's short name) started it. RP at 198.
Wooley also told Officer James Borosewicz that he saw Robinson running through the parking lot holding what appeared to be a flaming water balloon and that he saw him throw it at the sign. And Wooley told Officer Kenneth Viehmann that he saw Robinson hiding in the alley next to the gas station on the night of the robbery. At trial, Wooley denied making these statements to police. Instead, he testified that he only speculated to authorities that the fire must have been started by someone who threw a balloon.
Officer Herman Koppisch testified that Cindy Theroux told police that on the night of the robbery, she saw Robinson running past her apartment complex porch. She stated that Robinson was wearing no shirt, that he appeared sweaty, and that it looked like there was a small weapon or firearm in the small of his back. At trial, Theroux denied making these statements to police. Instead, she testified that on the night of the robbery, Robinson arrived at her apartment out of breath and sweating; he gave her money to go to the store to buy cigarettes and beer.
Jason Roberts testified that he was on a pay phone outside of the Shell station around the time of the robbery when he saw Robinson pass by.
A fire investigator, Larry Steiner, testified that the burn damage to the sign was consistent with Kwak's story that someone had thrown something at the sign to set it on fire.
Robinson told police that on the night of the robbery, he was watching a football game at his friend Robert Boone's house. Boone testified, however, that Robinson left at half-time, around 7:30 p.m., to buy cigarettes and never came back. Robinson explained that he returned to Boone's house but that Boone had left, so he went to Brown's restaurant and bar.
Robinson also testified that at the time of the fire, he was waiting for a bus at the Tacoma Community College transit center. A bus driver who may have driven that route on the night of the fire testified that he did not recognize Robinson; he also stated that he sees about 500 people on any given shift. Another bus driver who may have driven on that route testified that he was `fairly positive' that Robinson was not on the bus that night. RP at 311.
During closing argument, the prosecutor said `[i]f you believe Mr Kwak . . . you must find the defendant guilty.' RP at 608. Robinson did not object. Finally, at sentencing, Robinson did not raise the issue of `same criminal conduct' for his convictions of possession of an incendiary device and second degree arson.
ANALYSIS I. Sufficient Evidence of Appurtenant
Robinson argues that the evidence was insufficient to support his conviction of second degree arson because the State failed to prove that Checker's Shell station sign was a structure or erection `appurtenant to or joining' the gas station. He does not claim that the statute is ambiguous. Rather, he relies on `the natural and ordinary meaning of `appurtenant'' as `annexed,' `attached,' or `joining' `a more important thing.' Appellant's Br. at 10-11 (citing Black's Law Dictionary at 87, 98 (7th ed. 1999). Other ordinary definitions of `appurtenant' are `annexed or belonging to some more important thing' and `incident to and passing in possession with real estate.' Webster's Third Int'l Dictionary, at 107 (1969). And, according to Robinson, the State offered no evidence that the sign was appurtenant to the station.
Evidence is sufficient to convict if, considered most favorably to the State, a rational trier of fact could have found all of the crime's elements beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338-39, 851 P.2d 654 (1993); see also, State v. Scott, 48 Wn. App. 561, 571, 739 P.2d 742 (1987); State v. Baeza, 100 Wn.2d 487, 488, 670 P.2d 646 (1983). The second degree arson statute reads:
A person is guilty of arson in the second degree if he knowingly and maliciously causes a fire or explosion which damages a building, or any structure or erection appurtenant to or joining any building, or any wharf, dock, machine, engine, automobile, or other motor vehicle, watercraft, aircraft, bridge, or trestle, or hay, grain, crop, or timber, whether cut or standing or any range land, or pasture land, or any fence, or any lumber, shingle, or other timber products, or any property.
The court instructed the jury, `A person commits the crime of arson in the second degree when he or she knowingly and maliciously causes a fire or explosion which damages any structure or erection appurtenant to or joining any building.' Clerk's Papers (CP) at 54.
Under these `ordinary' definitions of `appurtenant,' the State presented sufficient evidence to prove that the Shell sign belonged to and was incident to the Shell station. Several photos of the sign from different angles show that it was located on and attached to the station property close to the gas pumps. Thus, a reasonable jury could have found that the Shell sign was `appurtenant' to the gas station. We find the evidence sufficient to support Robinson's second degree arson conviction.
II. Prosecutorial Misconduct
Robinson contends that the prosecutor committed misconduct during closing argument when he (1) vouched for the credibility of the State's witnesses, and (2) engaged in an improper `lying or mistaken' argument. Appellant's Br. at 17-20. The State defends its argument and reminds us that Robinson did not object during closing and has not shown prejudice.
Robinson also argues that the prosecutor misstated the legal definition of appurtenant when he explained that the gas station sign constituted `a structure other than an interior or building itself . . . where people would be' and that this was consistent with structures covered by the second degree arson statute. Appellant's Br. at 20-21. We have already addressed Robinson's appurtenant argument and we find nothing misleading in the prosecutor's statements.
Prosecutorial misconduct requires Robinson to show that the prosecutor's conduct was both improper and prejudicial in the context of the entire record. State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003) (citing State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997)), review denied, 151 Wn.2d 1039 (2004). Robinson bears the burden of proving improper conduct and prejudice. Hughes, 118 Wn. App. at 727. We view the allegedly improper statements within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). And a defendant's failure to object to a prosecutor's improper remark waives the error, unless the remark is deemed so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury. Stenson, 132 Wn.2d at 719.
A. Comments Regarding Credibility
In general, a prosecutor may not express a personal opinion about a witness's credibility. State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984). But, `[t]he prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury.' Stenson, 132 Wn.2d at 727 (citing State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991)); see also, State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105 (1995). And a prosecutor may draw inferences as to the credibility of witnesses if done properly and if the record supports the inference. State v. Hinkley, 52 Wn.2d 415, 420, 325 P.2d 889 (1958); see State v. Brown, 35 Wn.2d 379, 386, 213 P.2d 305 (1949).
Robinson complains of the following statements by the prosecutor:
What bias do officers in this case have to come in and tell you anything other than the truth about what they did in their job, or fire department personnel? And there are also civilian witnesses in this case. What bias did those individuals have to come in and what reason did they have to say what they say when they are testifying in court? . . . And I would suggest that [the civilian witnesses] are friends of the defendant, and that explains the bias, that explains why they would change their story.
Appellant's Br. at 17. Robinson fails to explain why these particular comments are improper or prejudicial. Nor does he explain how the statements are the prosecutor's personal opinions. We find nothing improper in these comments.
Robinson next points to the following comment by the prosecutor: `And I would ask you to completely disregard [Robinson's] statement [that officers told him `You are looking at 25 years], except if you believe that the defendant is talking truthfully.' Appellant's Br. at 18. The prosecutor was discussing Robinson's testimony about a conversation with the police:
I want to highlight that it's the defendant who put into evidence — only the defendant — that the officers said, `You are looking at 25 years,' that or, `You are going to make a deal.'
I would suggest to you that that's not credible, that he said that because he wanted to influence you, because he wanted you to think about terms that he might face, so that you will feel sympathetic toward him or feel that the crime doesn't merit the punishment.
But again I want to emphasize: The judge sentences, not the jury. And you don't have any evidence, nor should you, regarding any kind of time the defendant may face, if in fact he's convicted of these crimes.
RP at 590-91.
Again we find nothing improper in these comments. The prosecutor did not express his personal opinion about Robinson's credibility. Rather, he spoke of the likelihood that the officers would make such a statement to Robinson and he suggested that Robinson may have been seeking sympathy when he testified about the conversation. Finally, the prosecutor correctly explained that the judge sentences, not the jury. Robinson does not identify the impropriety or harm in this.
B. `Lying or Mistaken' Comments
A prosecutor may not argue that to acquit a defendant, the jury must find that the State's witnesses are either lying or mistaken. State v. Fleming, 83 Wn. App. 209, 921 P.2d 1076 (1996). In Fleming, a second degree rape trial, the prosecution stated in closing argument: `for you to find the defendants . . . not guilty of the crime of rape . . . you would have to find either that [the victim] has lied about what occurred . . . or that she was confused; essentially that she fantasized what occurred.' Fleming, 83 Wn. App. at 213 (emphasis omitted). The Fleming court held that the prosecution's argument constituted misconduct, finding it both flagrant and ill-intentioned because two years earlier the court had held such arguments improper in State v. Casteneda-Perez, 61 Wn. App. 354, 810 P.2d 74 (1991). Fleming, 83 Wn. App. at 213-14.
Nor may a prosecutor argue that `in order for you to find the defendant not guilty . . . you have to believe his testimony and you have to completely disbelieve the officers' testimony. You have to believe that the officers are lying.' State v. Barrow, 60 Wn. App. 869, 874-75, 809 P.2d 209 (1991).
Here, the prosecutor's statements in closing argument are distinguishable from those in Fleming and Barrow. Instead of telling the jury it had to find a witness was mistaken or lying to acquit, the prosecutor simply explained that if the jury believed Kwak, it had sufficient evidence to convict. This argument did not present the jury with the unpleasant alternative of either convicting or finding the State's witnesses had lied. We find no impropriety in the argument.
III. Same Criminal Conduct
In a statement of additional grounds for review, Robinson claims that the trial court should have treated his second degree arson and possession of an incendiary device convictions as the `same criminal conduct' for purposes of calculating the offender score during sentencing. Robinson did not ask the trial court to find same criminal conduct. And the court counted the convictions for arson and possession of an incendiary device separately, sentencing him to 126 months for Count I (the robbery); 70 months for Count II (the arson); and 43 months for Count III (the unlawful possession of an incendiary device).
Generally we do not review an alleged error not raised at trial. State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993). But we will review a judgment and sentence if it is invalid on its face. In re Goodwin, 146 Wn.2d 861, 866-67, 874, 50 P.3d 618 (2002) (holding `waiver does not apply where the alleged sentencing error is a legal error leading to an excessive sentence'). Assuming without deciding that Robinson has raised a legal error issue, we consider his same criminal conduct argument.
Whenever a person is to be sentenced for two or more current offenses, the court determines the sentence range for each current offense by counting all other current and prior convictions as if they were prior convictions for the purpose of the offender score. RCW 9.94A.589(1)(a). If the court enters a finding that some or all of the current offenses encompass the same criminal conduct, then those current offenses shall be counted as one crime. RCW 9.94A.589(1)(a). `Same criminal conduct' means `two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.' RCW 9.94A.589(1)(a); State v. Tili, 139 Wn.2d 107, 123, 985 P.2d 365 (1999), aff'd by 148 Wn.2d 350 (2003). The absence of any one of the three elements prevents a finding of same criminal conduct. State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992).
We review a trial court's determination about same criminal conduct for abuse of discretion or misapplication of law. State v. Maxfield, 125 Wn.2d 378, 402, 886 P.2d 123 (1994) (citing State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440 (1990)). The trial court abuses its discretion when it acts unreasonably or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Review for abuse of discretion is a deferential standard; but, review for misapplication of law is not. State v. Freeman, 118 Wn. App. 365, 377, 76 P.3d 732 (2003).
Here, the court made no explicit findings about the three prongs of same criminal conduct. Nevertheless, the facts in the record show that the crimes of possession of an incendiary device and arson did occur on the same night (December 17, 2002) and in the same location (Checker 2 Shell station). Yet the record also shows that the crimes did not involve the same victim. In State v. Haddock, 141 Wn.2d 103, 110-11, 3 P.3d 733 (2000), the court held that the victim of unlawful possession of a firearm is the general public; whereas, the victims for possession of a stolen firearm were the owners of the stolen firearm. In this case, Kwak was the arson victim and the public was the victim of possession of an incendiary device. Because all three elements of the same criminal conduct test must be satisfied for a court to find same criminal conduct, the trial court did not err when it counted arson and possession of an incendiary device as separate offenses.
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.
HUNT, J. and VAN DEREN, J., Concur.