Opinion
No. 55809-9-I.
June 5, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-01353-1, Bruce W. Hilyer, J., entered February 28, 2005.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Shawn M. Smith/Doc# 818469 (Appearing Pro Se), Washington State Penitentiary, 1313 N. 13th Ave., Walla Walla, WA 99362.
Counsel for Respondent(s), Heather M. Jensen, King County Courthouse, W554, 516 3rd Ave, Seattle, WA 98104-2385.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Affirmed by unpublished per curiam opinion.
Shawn Smith appeals his conviction for first degree robbery of a financial institution on the ground that one of the jury instructions relieved the State of its burden of proof by allowing the jury to convict him without finding beyond a reasonable doubt that the teller actually felt a reasonable fear or threat of force. When read as a whole, the instructions informed the jury that the burden of proof for each element was on the State and delineated each element of first degree robbery. The element of force or threatened use of force may be found when there is an implied threat which arises out of the circumstances of the robbery. We hold that the circumstances of this bank robbery were such that the State proved there was a reasonable fear of danger. We affirm.
State v. Collinsworth, 90 Wn. App. 546, 966 P.2d 905 (1997), review denied, 135 Wn.2d 1002 (1998).
FACTS
On May 14, 2004, Shawn Smith approached a teller at the counter of the Issaquah branch of U.S. Bank and handed her a note asking her to put `all 5['s], 10's, 20's, 50's and hundreds in the bag.' Smith told her not to include dye packs or bait money. The teller complied with Smith's request. She told police she was frightened, surprised, and that her `heart dropped to the floor and [she] just went on autopilot. . . .' While she collected the money, Smith grew agitated and yelled at her, asking why it was taking so long. Smith left the bank after the teller gave him the money, walked across the street to a QFC grocery store and hid the money in a garbage can near the store's caf. When police located Smith inside QFC, they arrested him on an unrelated outstanding warrant. Surveillance cameras captured these events on tape.
U.S. Bank policy requires tellers to cooperate with demands for money to ensure the safety of employees and customers.
At trial, the jury received the following instructions:
I.
The order in which these instructions are given has no significance as to their relative importance. The attorneys may properly discuss any specific instructions they think are particularly significant. You should consider the instructions as a whole and should not place undue emphasis on any particular instruction or part thereof.
. . . .
II.
The State is the plaintiff and has the burden of proving each element of the crime beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists.
. . . .
VI.
A person commits the crime of robbery when he or she unlawfully and with intent to commit theft thereof takes personal property from the person or in the presence of another against that person's will by the use or threatened use of immediate force, violence, or fear of injury to that person or to that person's property or to the person or property of anyone. The force or fear must be used to obtain or retain possession of the property or to prevent or overcome resistance to the taking, in either of which cases the degree of force is immaterial. The taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom it was taken, such knowledge was prevented by the use of force or fear.
This instruction mirrors the language found in RCW 9A.56.190 defining robbery.
VII.
To convict the defendant of the crime of robbery in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about May 14, 2004, the defendant unlawfully took personal property from the person or in the presence of another;
(2) That the defendant intended to commit theft of the property;
(3) That the taking was against the person's will by the defendant's use or threatened use of immediate force, violence or fear of injury to that person or to that person's property or to the person or property of another;
(4) That force or fear was used by the defendant to obtain or retain possession of the property or to prevent or overcome resistance to the taking;
(5) That in the commission of these acts or in immediate flight therefrom the defendant acted within and against a financial institution; and
(6) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proven beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
This instruction conforms with WPIC 37.02.
. . . .
XII.
If the taking of the property be attended with such circumstances of terror, or such threatening by menace, word, or gestures as in common experience is likely to create an apprehension of danger and induce a man to part with property for the safety of his person, it is robbery.
Smith objected to instruction 12 on the ground that the State failed to present sufficient evidence that the teller actually felt reasonable fear or threat of force. The jury found Smith guilty as charged.
DISCUSSION
Smith does not challenge the sufficiency of the evidence against him, and he concedes that jury instructions 6 and 7 correctly defined the statutory elements of robbery. But he asserts jury instruction 12 directed the jury to convict him by telling it to convict if they found he made an implied threat. While Smith concedes an implied threat of force may be sufficient to uphold his robbery conviction on appeal, he argues instruction 12 shifted the burden of proof and allowed the jury to convict him without finding that he committed each element of first degree robbery beyond a reasonable doubt.
The State argues the instructions, when read as a whole, set forth the elements of robbery in the first degree. It also asserts that instruction 12 was proper under the holding in State v. Collinsworth. We agree. The State must prove each essential element of a crime beyond a reasonable doubt. The jury may not be instructed in a manner that would relieve the State of this burden. To prove a robbery has been committed, the State must establish that property was illegally taken by 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. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. . . .
90 Wn. App. 546, 966 P.2d 905 (1997), review denied, 135 Wn.2d 1002 (1998).
State v. Cronin, 142 Wn.2d 568, 580, 14 P.3d 752 (2000) (citing In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368 (1970)).
Id. (citing State v. Jackson, 137 Wn.2d 712, 727, 976 P.2d 1229 (1999)).
The threatened use of force need not be overt. The State may prove the use of force by implied threat by showing that property was taken under circumstances of "terror, or such threatening by menace, word, or gesture as in common experience is likely to create an apprehension of danger and induce [one] . . . to part with property for the safety of his person. . . ."
State v. Parra, 96 Wn. App. 95, 977 P.2d 1272 (Any force or threat, no matter how slight, which induces an owner to part with property is sufficient to sustain a robbery conviction) (citing State v. Handburgh, 119 Wn.2d 284, 293, 830 P.2d 641 (1992)), review denied, 139 Wn.2d 1010 (1999).
Collinsworth, 90 Wn. App. at 551 (quoting State v. Redmond, 122 Wn. 392, 393, 210 P. 772 (1922)).
An implied threat may arise during a bank robbery because the circumstances surrounding bank robberies are such that an apprehension of danger can arise even without an overt threat. In Collinsworth, the court held an `implied threat' was sufficient to sustain a conviction for robbing a financial institution even if a defendant does not brandish a weapon or make an overt threat. The court explained:
Id. at 553-554.
Id. (Collinsworth was found guilty of multiple counts of robbery of financial institutions. During each bank robbery, Collinsworth made his demands in a low voice without overtly threatening violence or brandishing a weapon. Each bank had policies requiring tellers to comply for the safety of employees and others in the bank. The tellers in each bank complied with Collinsworth in response to the perceived threat and in accord with bank policy.)
No matter how calmly expressed, an unequivocal demand for the immediate surrender of the bank's money, unsupported by even the pretext of any lawful entitlement to the funds, is fraught with the implicit threat to use force. `Any force or threat, no matter how slight, which induces an owner to part with his property is sufficient to sustain a robbery conviction.' . . .
Id. (footnote omitted) (quoting State v. Ammlung, 31 Wn. App. 696, 704, 644 P.2d 717 (1982)).
We presume juries follow their instructions and read each of the court's instructions in light of all other instructions. Here, the court instructed the jury on all elements of first degree robbery as provided in RCW 9A.56.190 and RCW 9A.56.200. It also instructed the jury to consider the instructions as a whole.
In re Pers. Restraint of Davis, 152 Wn.2d 647, 713, 101 P.3d 1 (2004) (quoting Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987)).
State v. McLoyd, 87 Wn. App. 66, 71, 939 P.2d 1255 (1997) (citing State v. Alford, 25 Wn. App. 661, 670, 611 P.2d 1268 (1980), aff'd, State v. Claborn, 95 Wn.2d 629, 628 P.2d 467 (1981)), aff'd sub nom. State v. Studd, 137 Wn.2d 533, 973 P.2d 1049 (1999).
Instruction 12 did not relieve the State of its burden of proof or direct a guilty verdict. It merely explained how the jury could find there had been force or threatened use of force through an implied threat. The instruction described robbery as the taking of the property of another under circumstances creating an `apprehension of danger' or inducing a person to `part with his property for the safety of his person.' This definition of robbery satisfies the elements outlined in RCW 9A.56.190 and the holding in Collinsworth.
We affirm.
AGID, ELLINGTON and BAKER, JJ., concur.