Opinion
Nos. 56540-1-I; 57285-7-I.
April 16, 2007.
Appeals from a judgment of the Superior Court for King County, No. 03-1-00029-5, Richard McDermott, J., entered June 10, 2005.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Appelwick, C.J., concurred in by Baker and Cox, JJ.
Demicko Thomas robbed two jewelry stores. During each robbery, he bound his victims and threatened them with a firearm. A jury convicted him of one count of attempted first degree robbery, three counts of first degree kidnapping, one count each of first degree assault, first degree robbery, and unlawful possession of a firearm. Six of the charges carried a firearm enhancement. Thomas was sentenced to 800 months incarceration. We affirm Thomas' conviction and sentence, reversing only on the incorrect calculation of his firearm enhancements as conceded by the State.
The State concedes that the trial court erred when it imposed 60-months of prison time for each firearm enhancement rather than 36-months.
FACTS
On September 21, 2002, Thomas entered the Hohner jewelry store holding brochures that he had been given when he visited the store the day before. After some discussion, Thomas pointed a gun at Chuck Hohner, store owner, and brought Hohner around his bench area. He forced Hohner to lie on the ground, bound him with zip ties and ordered him to quit squirming or he would kill him. Thomas then put on gloves and began taking jewelry. Hohner, knowing that the zip ties were breakable, broke free. As Hohner reached for a gun that was hidden from view, Thomas fired shots at him. Hohner returned fire, but neither he nor Thomas were injured. Thomas fled, leaving behind the bag of jewelry and the brochures which contained a fingerprint.
On December 28, 2002, Thomas entered the Farrell jewelry store on the pretense that he was looking for an engagement ring before being deployed from Fort Lewis. He was in full army fatigues, and did not take his gloves off to try on a ring. As Nancy Farrell began filling out a sales slip for Thomas' selection, she looked up to find Thomas pointing a gun at her face. Thomas held both Farrell and Kursnikhi, an employee, at gunpoint, and ordered them into the back room and onto the floor. There, he handcuffed them together at their hands and at their ankles. He told them to be quiet because he did not want to have to hurt them. He fled with cash and jewelry. Farrell and Kursnikhi, still handcuffed to each other, made their way to the panic button and a telephone to call 9-1-1. Firefighters needed to use special bolt cutters to free the women.
Police retrieved a surveillance video from a nearby 7-Eleven store from which Thomas had called Farrell's jewelry store just before the robbery. Still photos from this tape were shown separately to Farrell and Kurnskhi, who each positively identified Thomas. Hohner saw these photos on the news, and identified the man in the photos as the same man who had robbed his store. Thomas was convicted of all charges after a jury trial. He was sentenced to 800 months incarceration.
ANALYSIS Conceded Sentencing Error
Thomas correctly points out that because attempted robbery is a class B felony he should have only received a 36-month firearm enhancement on that charge, rather than the 60-month firearm enhancement imposed on class A felonies. Because the State concedes this point, we remand this matter for resentencing, and correction of the final, maximum term in section 2.4 of the Judgment and Sentence.
Sufficiency of the Evidence to Prove That Thomas Was Armed With a Firearm
A firearm enhancement is imposed if the offender or an accomplice was armed with a firearm as defined in RCW 9.41.010. RCW 9.94A.533. "Firearm" means a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder. RCW 9.41.010(1). Thomas argues that the evidence is not sufficient to show that the gun he carried while robbing the Farrell store was capable of firing an explosive.
"The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "Circumstantial evidence is as probative as direct evidence." State v. Vermillion, 66 Wn. App. 332, 342, 832 P.2d 95 (1992), (citation omitted). We defer to the trier of fact to resolve any conflicts in testimony, to weigh the persuasiveness of evidence, and to assess the credibility of the witnesses. State v. Boot, 89 Wn. App. 780, 791, 950 P.2d 964 (1998).
In construing the firearm enhancement statute, Division Two of this Court held that the definition of firearm "did not limit firearms to only those guns capable of being fired during the commission of the crime. Rather, the court [in Tongate] characterized a firearm as a gun in fact, not a toy gun; and the real gun need not be loaded or even capable of being fired to be a firearm." State v. Faust, 93 Wn. App. 373, 380, 967 P.2d 1284 (1998) (holding that the firearm enhancement still applied even when the gun was mechanically inoperable) (citing State v. Tongate, 93 Wn.2d 751, 613 P.2d 121 (1980)).
The Faust court also pointed out that "eyewitness testimony to a real gun that is neither discharged nor recovered is sufficient to support deadly weapons and/or firearms penalty enhancements." Faust, 93 Wn. App. at 380 (citing State v. Bowman, 36 Wn. App. 798, 803-04, 678 P.2d 1273 (1984). The State need not introduce the actual weapon at trial. Bowman, 36 Wn. App. at 803. "The evidence is sufficient if a witness to the crime has testified to the presence of such a weapon, as happened here. . . . The evidence may be circumstantial; no weapon need be produced or introduced." Id. (quoting State v. Tongate, 93 Wn.2d 751, 754, 613 P.2d 121 (1980)). In Bowman, the witness described the gun in detail and on cross examination stated that "there was no question in my mind whatsoever" that it was a real gun. Bowman, 36 Wn. App. at 798. Here, both Farrell and Kursnikhi provided eyewitness testimony that Thomas held a real gun to Farrell's face. When asked during her 9-1-1 call whether she had seen a weapon, Farrell replied, "Yes. Yes. He had a gun." During her testimony, Farrell described the gun as "a large hand held gun, it was silver, aluminum silver color. The barrel of the gun was about that big, from what I remember, and had a very dark tunnel-looking hole in the middle." When asked how the gun felt when Thomas shoved it into Farrell's side, Farrell replied, "Oh, it felt very heavy, very strong." Farrell drew a picture of the gun.
Kursnikhi testified that she had never seen a real gun in her life. She said that when Thomas pulled the gun on Farrell, she "realized [they were] really in trouble," because Farrell's face turned "white as paper." She described the gun as "beautiful," "white or grayish, kind of metal, shiny and flat," with a "little bit of a line going sideways." While Thomas never pointed the gun at her, his statement "I don't want to hurt you" indicated that he was capable of hurting them with the weapon he held.
The testimony from all victims is sufficient, viewed in the light most favorable to the State, for a trier of fact to find beyond a reasonable doubt that Thomas carried a real gun. We defer to the jury's assessment of the persuasiveness of the evidence and witness credibility. Whether the gun was operable does not matter. Faust, 93 Wn. App. at 380. The evidence is sufficient to support the jury's findings on the firearm enhancements for the first degree robbery charge and two counts of first degree kidnapping.
Firearm Enhancements and Double Jeopardy
"Washington courts have repeatedly rejected arguments that weapon enhancements violate double jeopardy." State v. Huested, 118 Wn App. 92, 95, 74 P.3d 672 (2003) (citing State v. Claborn, 95 Wn.2d 629, 636-38, 628 P.2d 467 (1981)); see also, State v. Nguyen, 134 Wn. App. 863, 868, 142 P.3d 1117 (2006) review pending 2007 Wash. LEXIS 102 (Wash. Jan. 30, 2007). The "statute unambiguously shows legislative intent to impose two enhancements based on a single act of possessing a weapon, where there are two offenses eligible for an enhancement." Huested, 118 Wn. App. at 95 (evaluating the deadly weapon enhancement section of Chapter 9.94A RCW, which contains the same language as the firearm enhancement section). However, Thomas urges a double jeopardy "same elements" analysis in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
We recently addressed and rejected this argument in Nguyen, 134 Wn. App. at 869, 871 (finding that "nothing in Blakely gives reason to question prior Washington cases holding that double jeopardy is not violated by weapon enhancements even if the use of the weapon is an element of the crime."). Nguyen at 869. Like Nguyen, Thomas was convicted of several counts of first degree crimes that required the use of a firearm. Like Nguyen, the jury found Thomas armed with a firearm on each count and the sentencing court imposed consecutive firearm enhancements. Since Thomas' case and arguments are indistinguishable, we adhere to our conclusion in Nguyen; any legislative redundancy in mandating enhanced sentences for offenses involving the use of a firearm is intentional and does not violate double jeopardy principles or Blakely. Legislative intent is also clear that the firearm enhancement sentences must be imposed consecutively.
Former RCW 9.94A.510(3), recodified as RCW 9.94A.533(3) states: [t]he following additional times shall be added to the standard sentence range for felony crimes . . . if the offender . . . was armed with a firearm as defined in RCW 9.41.010 . . .
(e) Notwithstanding any other provision of law, all firearm enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter . . .
(f) The firearm enhancements in this section shall apply to all felony crimes except the following: Possession of a machine gun, possessing a stolen firearm, drive-by shooting, theft of a firearm, unlawful possession of a firearm in the first and second degree, and use of a machine gun in a felony . . .
Former RCW 9.94A.510(3) (emphasis added).
Double jeopardy is not violated. Thomas had six qualifying offenses so is he eligible for six consecutive firearm enhancement sentences. Sufficiency of the evidence to prove that Thomas is guilty of first degree kidnapping, i.e. that he substantially interfered with his victim's liberty, Thomas argues that kidnapping requires more than simple interference with a person's freedom of movement during the commission of a crime. He asserts that the evidence is insufficient to show that he used the amount of restraint required to justify the separate kidnapping charge.
As recently held in State v. Louis, the crimes of kidnapping and robbery do not merge. State v. Louis, 155 Wn.2d 563, 571, 120 P.3d 936 (2005). Accordingly, Thomas cannot claim that restraining his victims was only incidental to his robbery; they are separate charges. A person is guilty of kidnapping in the first degree if "he intentionally abducts another person with intent . . . (b) To facilitate commission of any felony or flight thereafter . . ." RCW 9A.40.020(1). "`Abduct' means to restrain a person by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly force." RCW 9A.40.010(2). "Restrain" means to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with his liberty. RCW 9A.40.010(1). To establish abduction, the State can show that the defendant either restrained his victim (1) by secreting him or her to a place where he or she is not likely to be found or; (2) by means of a threat to use deadly force. State v. Green, 94 Wn.2d 216, 225, 616 P.2d 628 (1980). In determining whether moving a victim is sufficient to be "secreting [him or] her in a place where [he or] she [is] not likely to be found," distance is but one factor to be considered, in light of the totality of the surrounding circumstances. Id. at 226.
In addition, the trial court denied merger, finding that "I think that there was enough information present here that a jury could conclude that restraint was not merely incidental to the robbery, but was over and above the robbery . . ."
We review the evidence supporting Thomas' kidnapping conviction to determine whether a rational trier of fact could find, beyond a reasonable doubt, that Thomas intentionally abducted another person with intent to facilitate commission of any felony or flight thereafter. Salinas, 119 Wn.2d at 201; RCW 9A.40.020(1). In the first robbery, Thomas pulled his gun on Hohner, grabbed his shoulders, pushed the gun into his back, and ordered him to the ground behind a counter where Hohner was obscured from view. The windows in Hohner's store are tinted, and the front door was locked so that no one could enter the store. Thomas kept Hohner on the ground by pushing down on Hohner's back with his knee and threatening to kill him. Hohner testified that he could not move at all. Thomas bound Hohner with heavy-duty zip ties used to bind electrical cables. Hohner testified that Thomas said, "if you say anything else, I am going to kill you." When Thomas turned to begin taking jewelry, Hohner snapped the plastic ties, but remained in the same position because he feared that Thomas would try to kill him. He did not move again until Thomas put his gun down.
Thomas also held Farrell and Kursnikhi at gunpoint, forcing them to a backroom. Having previously learned that zip ties were insufficient, Thomas used handcuffs to bind Farrell and Kursnikhi to each other in a restraining and painful position. He refused to adjust the handcuffs when Kursnikhi protested against the tight restraint. They remained in this position on the floor of a backroom, removed from public view while Thomas completed his robbery and escaped. After he left, they remained chained to each other and had to hobble together to the phone to call 9-1-1. Farrell and Kursnikhi regained their freedom of movement only after firefighters used bolt cutters to remove the restraints. Farrell testified that they had been cuffed about half and hour, and that they experienced circulation problems long after the cuffs had been removed.
Thomas restrained his victims by secreting them to a place where they were not likely to be found and by using threats of deadly force. He also substantially interfered with their freedom of movement by binding them. In light of the totality of the surrounding circumstances, the evidence is sufficient to conclude that a rational trier of fact could find all the elements of kidnapping beyond a reasonable doubt.
Definition of First Degree Kidnapping
Thomas argues that "restraint" is a material element of kidnapping. He argues that because the trial court did not provide jury instructions defining "restraint", the State's burden of proof was lessened and he was deprived of his right to a fair trial.
Jury instructions are reviewed de novo. Blaney v. Int'l Ass'n of Machinists, 151 Wn.2d 203, 210, 87 P.3d 757 (2004). "A trial court has discretion to decide how instructions are worded." State v. Ng, 110 Wn.2d 32, 41, 750 P.2d 632 (1988). The constitution requires the trial court to instruct the jury on each element of the crime charged. State v. Byrd, 125 Wn.2d 707, 713, 887, P.2d 396 (1995). But trial courts are not required to further define one of the elements, especially when the meaning of a term is easily understood by laymen. See State v. Ng, 110 Wn.2d 32, 44, 750 P.2d 632 (1998) (finding that "`[t]heft' like `assault' is a term of sufficient common understanding to allow the jury to convict of robbery."). Instructions are sufficient if they properly inform the jury of the applicable law without misleading the jury, and permit each party to argue its theory of the case. Gammon v. Clark Equip., 104 Wn.2d 613, 617, 707 P.2d 685 (1985).
In Thomas' case, the jury instructions read:
[t]o convict the defendant of the crime of kidnapping in the first degree . . . each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That . . . the defendant intentionally abducted [victim]; (2) That the defendant abducted that person with intent to facilitate the commission of robbery in the first degree; and; (3) That the acts occurred in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty . . .
The definition of "abduct" was also provided to the jurors: "Abduct means to restrain a person using or threatening to use deadly force." The jury was properly instructed as to the elements of first degree kidnapping. They were also provided with the definition of "abduct." Within that definition the word "restrain" is a term of sufficient common understanding to allow the jury to convict Thomas of kidnapping. Because the instructions properly informed the jury of the applicable law, they were sufficient in instructing the jury on the State's burden of proof. Thomas was not deprived of a fair trial.
Denial of Frye Hearing for the Reliability of Fingerprint Identification Evidence
Before trial, Thomas moved for a Frye hearing on fingerprint identification evidence. He claims that the trial court did not analyze his supporting materials — consisting entirely of journal articles discussing the practice of fingerprint analysis — but instead issued a pro forma ruling that fingerprint identification evidence has long been admissible in court.
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (requiring the court to hold a heading on the admissibility of scientific testimony where new evidence shows a significant dispute as to a scientific theory or principle).
A trial court's decision to admit testimony under the Frye test is reviewed de novo. State v. Baity, 140 Wn.2d 1, 9-10, 991 P.2d 1151 (2000). Fingerprint identification evidence has been generally accepted in Washington since at least 1927. See e.g State v. Bolen, 142 Wash. 653, 254 P. 445 (1927); State v. Johnson, 194 Wash. 438, 442, 78 P.2d 561 (1938); State v. Witzell, 175 Wash. 146, 26 P.2d 1049 (1933). Fingerprint identification evidence is the same in its degree of reliability and acceptance as toolmarks, ballistics, handwriting, and other diverse forms of impression evidence. State v. Kunze, 97 Wn. App. 832, 854-55, 988 P.2d 977 (1999),
The trial court correctly stated that "the accepted methodology for identifying people includes fingerprint analysis. It has for many, many years in this state." A Frye hearing is not needed. Thomas is mistaken to suggest otherwise.
Prosecutorial Vindictiveness
Thomas argues that the prosecutor vindictively increased his charges in this case because he did not plead guilty in a separate harassment case. The State argues that Thomas' claim should not be reviewed because he neglected to assign error to the trial court's written findings of fact and conclusions of law, as required by RAP 10.3(g). Thomas does not rebut this argument in his reply brief.
RAP 10.3(g) provides:
A separate assignment of error for each instruction which a party contends was improperly given or refused must be included with reference to each instruction or proposed instruction by number. A separate assignment of error for each finding of fact a party contends was improperly made must be included with reference to the finding by number. The appellate court will only review a claimed error which is included in an assignment of error or clearly disclosed in the associated issue pertaining thereto. (emphasis added).
An "appellant must present argument[s] to the court why specific findings of fact are not supported by the evidence and must cite to the record to support that argument." Inland Foundry Co., Inc. v. Dep't of Labor Indus., 106 Wn. App. 333, 340, 24 P.3d 424 (2001). Unchallenged findings of fact are verities on appeal. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 808, 828 P.2d 549 (1992).
The trial court heard extensive pre-trial argument alleging prosecutorial vindictiveness. In denying Thomas' motion to dismiss based on these allegations, the trial court issued a written order containing its findings of fact and conclusions of law. The trial court concluded that "the State [had] discretion to charge a defendant according to the conduct committed and there is no evidence that the State acted out of vindictiveness or under any other prohibited purpose." Thomas failed to assign any error to any finding of fact or conclusion of law in this order. Because unchallenged findings are verities on appeal, we do not disturb the trial court's conclusion.
Robbery and Assault of Hohner Were Not the Same Criminal Conduct
The State concedes that, under the particular facts of this case, "[t]he robbery and kidnapping of victim Farrell (Counts I and III) and victim Hohner (Counts V and VI) occurred at the same time and place against each victim, with the same criminal intent." However, the State maintains that Thomas' assault and robbery convictions against Hohner are not same criminal conduct.
[I]f 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.] "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).
When determining if two crimes share the same criminal intent, we ask whether the defendant's intent, viewed objectively, changed from one crime to the next, and whether commission of one crime furthered the other. State v. Freeman, 118 Wn. App. 365, 377, 76 P.3d 732 (2003). Courts must narrowly construe RCW 9.94A.400(1)(a) to disallow most assertions of same criminal conduct. State v. Price, 103 Wn. App. 845, 855, 14 P.3d 841 (2000) (referring to the former RCW governing consecutive sentences).
"An appellate court reviewing a trial court's sentencing under the act will not reverse a sentence unless it finds a clear abuse of discretion or misapplication of the law. This deference is also given the trial judge in determining the offender score." State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440 (1990). "Review for abuse of discretion is a deferential standard; review for misapplication of law is not." Freeman, 118 Wn. App. at 377. When "the record sheds almost no light on the sentencing court's reasons for eschewing the `same criminal conduct' analysis," the Washington Supreme Court has applied both standards of review. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000) (requiring reversal and remand for resentencing by finding that the trial court either abused its discretion or misapplied the law, or both, when it counted each of the defendant's current offenses separately toward his offender score). Abuse of discretion is possible if the trial court arbitrarily counted the convictions separately. Id. at 110. Misapplication of the law is possible if the trial court incorrectly finds that one crime is required to further the other in order to find same criminal conduct. Id. at 114. (finding that the "`furtherance test' was never meant to be and never has been the linchpin of this court's analysis of `same criminal conduct.'") Id. at 114.
Here, as in Haddock, the record sheds almost no light on whether or how the trial conducted "same criminal conduct analysis" to reach its implicit conclusion that the robbery and assault on Hohner were separate and distinct. The trial court made no explicit findings that the robbery and assault on Hohner should or should not be considered same criminal conduct.
The briefing arguments were very short. In his motion for new trial, Thomas argued "[s]imilarly, Counts VI and VII (Kidnapping and Assault) are not separate and distinct from Count V (Robbery of the Hohner Store) and should therefore not run consecutively to each other." The State did not address this argument in its response to the defendant's motion for a new trial. Thomas did not re-state this argument in his reply brief on the motion for a new trial.
During sentencing proceedings, the trial court discussed with Thomas' counsel the appropriateness of "the jury to be instructed on two separate charges, one of robbery in the first degree and the other of kidnapping as they were instructed. . . . I believe there were facts sufficient to allow the jury to consider two separate crimes, and that's what I'm finding." The only mention of the assault on Hohner occurred when the State said "[t]he only charge that runs consecutive is the assault charge to the kidnapping." The trial court then asked for the State's recommendation as to sentencing, which was postponed until June 10, 2005. There, the trial court asked the State about the consecutive recommendation of Count VII. The State replied:
The State: By statute, because there are two serious violent offenses, the kidnapping in the first degree and the assault in the first degree, you take the most serious offense, the assault in the first degree, with the offender score of 22 and then you run that consecutive to any other serious violent or lesser degree.
The Court: And you are indicating all the others are concurrent because they are lesser serious violent offenses but Count VII runs consecutive?
[State]: Correct.
Later, Thomas' counsel said:
I would like to revisit the issue of Count VII, whether it is consecutive or concurrent. . . . The phrase that rises from separate and distinct criminal conduct is what the court has to decide. Because he is charged with two crimes that are legally serious violent offenses, the court still has to make an additional determination at the time of sentencing as to whether or not that charge arose out of separate and distinct criminal conduct. . . . So it is up to the court to decide. The Count VII was the assault in the first degree against Mr. Hohner and that was all part of the charges of attempted robbery in the first degree, kidnapping in the first degree, assault in the first degree, in which all of this happened very quickly, and in my estimation the offense was not separate and distinct. That issue is still for the court to determine . . .
Distracted by another issue, the trial court did not address the need to determine same criminal conduct. Later, at the same sentencing hearing, the trial court concluded:
The Court: However, Mr. Thomas, I think that the state is correct and I am going to follow their recommendation. . . . I am going to run all the counts . . . except Count VII concurrently. Count VIII [sic] is to be consecutive with Counts I, III and IV.
[State]: The kidnapping counts?
The Court: Yes.
[State]: The court is correct.
This was the last time the trial court referred to the assault in question. It did not make an explicit finding as to whether or not the assault was separate and distinct from the robbery of Hohner, or whether the trial court considered it same criminal conduct.
Based on the above dialogue, we cannot conclude that the trial court misapplied the law. Accordingly, we review the sentence under the abuse of discretion standard. A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. Wick v. Clark County, 86 Wn. App. 376, 382, 936 P.2d 1201 (1997).
Assault requires intent to inflict great bodily harm, while robbery requires intent to deprive the victim of property. RCW 9A.36.011; RCW.9A.56.190; see also State v. Corwin, 32 Wn. App. 493, 649 P.2d 119 (1982) (noting that the statutory elements of robbery presuppose that intent to deprive the victim of property is a necessary element). Here, the parties do not dispute that the offenses were against the same victim at the same time and place. Accordingly, our evaluation of the facts focuses on Thomas' intent. When asking whether two crimes committed against the same defendant involve the same objective intent, courts consider whether the crimes were "merely sequential, or part of a continuous, uninterrupted sequence of conduct." Price, 103 Wn. App. at 858-59 (finding separate and distinct criminal conduct when a defendant shot at his victims, and then pursued them from surface streets to the freeway in another attempt to murder them). Cf. State v. Tili, 139 Wn.2d 107, 124, 985 P.2d 365 (1999) (finding same criminal conduct for two charges of rape when a defendant raped his victim three times within a two-minute time frame). Here, once he had restrained Hohner, Thomas set down his gun and began taking jewelry. The following series of events was described by Hohner during his testimony:
[Hohner]: Well, he was up here. His gun was on the showcase. He started pulling rings out of the showcase. That is when I hopped up and I had a .12 gauge shotgun sitting right here on the table. That was a small table right at this corner right here.
[State]: I am going to have you mark that table and use black — no, let's stick with red.
[Hohner]: I had a table right here. I had the shotgun sitting right there.
[State]: Why is that? . . . Why did you have the shotgun there?
[Hohner]: Security. He turned around at that point, as soon as I hopped up, I am an old gymnast. I used to compete in college. I can get up on my feet really quick. I snapped up, got to my feet and he turned around and said, "I told you I was going to kill you." He started shooting at me as I was going for my shotgun.
[State]: How did he shoot at you? You said that he placed the gun at the counter. At what point did he grab it?
[Hohner]: As soon as I hopped up, he went for the gun that was sitting about there. He turned around and he shot at me.
[State]: Right hand, left-hand?
[Hohner]: Right hand.
[State]: Can you, do you remember how he looked and how he shot the gun?
[Hohner]: Yes. He had the gun kind of sideways. He was shooting. He put a bullet two or three went into this area here, wiping out some equipment. One went into a seat here, I had a chair sitting right here. One bullet went into there and went into a plant. Then one went all the way down to the wall back here (indicating) went through that wall.
[State]: How many shots did he fire?
[Hohner]: I think that he unloaded the gun.
[State]: Initially or just from the —
[Hohner]: He shot three times at me and then when I pulled the shotgun out and I looked right at him and then he shot at me again.
[State]: So how many shots did he fire before — did you ever fire your shotgun?
[Hohner]: I did, as soon as I ducked around the corner again and I came back out, and I put an — adrenalin was flowing pretty good — I put a shot into the wall right here.
[State]: How many shots did he fire before your shotgun?
[Hohner]: He shot all that he had, that I think that he had in his gun.
According to Hohner, once Thomas saw that Hohner had broken free from the zip ties, Thomas dropped the bag of jewelry and shot at Hohner before he knew there was a shotgun in Hohner's reach. Further, Thomas shot at Hohner before Hohner had armed himself and shot at Thomas — in fact, Thomas emptied his gun before Hohner fired a shot. Once Thomas realized that Hohner was free from his restraints, Thomas made the decision not to flee, but instead, to shoot at Hohner. This suggests that Thomas objectively changed his intent from depriving Hohner of property to inflicting great bodily harm. The evidence is sufficient to persuade a fair-minded trier of fact that the shooting was not necessary to accomplish the robbery. The trial court did not abuse its discretion when it did not find same criminal conduct.
Consecutive Sentencing without Jury Findings
Thomas believes that the trial court's imposition of consecutive sentences for his first degree assault violates his Sixth Amendment right to a fair trial by jury. He encourages reconsideration of the Washington State Supreme Court's decision in State v. Cubias in which the Court decided that it was proper for the sentencing court to determine that three attempted murders against three separate victims were separate and distinct. State v. Cubias, 155 Wn.2d 549, 120 P.3d 929 (2005). He urges this reconsideration based on the United States Supreme Court decisions in Apprendi and Blakely. See Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
"We indicated [in Cubias] that the principle set forth in Apprendi and Blakely has no application to consecutive sentencing decisions so long as each individual sentence remains within the statutory maximum for that particular offense." State v. Louis, 155 Wn.2d 563, 572, 120 P.3d 936 (2005). The Louis court did not depart from the Cubias decision, and Thomas presents no reason to do so here. Because each individual sentence remained within the appropriate statutory maximum (with the exception of the firearm enhancement, which the State concedes was incorrect), the trial court properly imposed consecutive sentences.
Statement of Additional Grounds
Thomas' statement of additional grounds for review repeats several issues raised by appellate counsel. These issues require no further discussion. The remaining issues are examined to the extent allowed by Thomas' citations to case law and the record supplied on appeal.
False Testimony
Thomas argues that the prosecutor knowingly solicited false testimony from Susan Edwards, Hohner's apprentice. According to surveillance tapes, Edwards was in the store the day before the robbery. She testified that she watched a man in a yellow track suit jacket shop for about 45 minutes to an hour. She said that when she returned the next day, just after the robbery, she encountered police cars surrounding the crime scene. Concerned about Hohner's safety, she checked in with him. She testified that when Hohner said he had been robbed, Edwards said, "it was the man in the yellow jacket, wasn't it?" Hohner replied "yes, it was." Almost 18 months later, a detective called Edwards and conducted a phone interview. During that interview Edwards said that she was not sure if she would be able to identify the defendant. Just before being called to testify, Edwards was shown a surveillance video of the day of the robbery. On the stand, the prosecutor asked her if the man in the yellow track suit that she had seen the day before the robbery was in the courtroom. She pointed to Thomas, the only black man in the room, sitting at the defense table. Defense counsel made a motion for mistrial. After reading from the detective's interview transcript, the trial court said "[s]he testified concerning her change of opinion. I think that it goes to the weight of her testimony and not as to the admissibility." Because defense counsel had the opportunity to cross-examine the witness when she made the inconsistent statements, the trial court denied the motion.
The grant or denial of a motion for mistrial is reviewed for abuse of discretion. State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000) (citing State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). "An abuse of discretion occurs when no reasonable person would take the view adopted by the trial court." Greiff, 141 Wn.2d at 921 (citing State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997). "A trial court's denial of a motion for mistrial `will be overturned only when there is a substantial likelihood the prejudice affected the jury's verdict.'" Greiff, 141 Wn.2d at 921 (quoting State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994)).
"It is fundamentally unfair for a prosecutor to knowingly present perjury to the jury." United States v. LaPage, 231 F.3d 488, 491, 271 F.3d 909 (9th Cir. 2000). Reversal is required "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Id. at 491. However, in "exercising its discretion, the trial court may consider whether the instance of misconduct is relevant to the witness's veracity on the stand and whether it is germane or relevant to the issues presented at trial. State v. O'Connor, 155 Wn.2d 335, 349-50, 119 P.3d 806 (2005) (citing State v. Griswold, 98 Wn. App. 817, 831, 991 P.2d 657 (2000).
Thomas cites to cases containing examples of false testimony. However, the circumstances in Thomas' case are distinguishable. Edwards was not under oath when she was interviewed over the phone. She was not the only eye-witness; Hohner himself had lengthy interactions with Thomas, as did Farrell and Kursnikhi. Because she was not the only individual to interact with Thomas, her credibility was not key to his identification and eventual conviction. Edwards' in-court identification was not flatly contradictory with her statement during the telephone interviews. Further, the prosecution in this case did not intentionally solicit testimony that was known perjury — the prosecutor simply asked the apprentice if she saw the "person who entered that store on September 20th in court?" Even if Edwards' statements can be characterized as false, they were not dispositive. There is not a substantial likelihood that any prejudice that may have occurred affected the jury's verdict. The trial court did not abuse its discretion when it denied Thomas' motion for mistrial.
See e.g. LaPage, 231 F.3d 488 (reversing conviction when a prosecutor interviewed the same witness in two different trials who gave plainly contradicting testimony when asked the same question at both trials); Alcorta v. Texas, 355 U.S. 28, 78 S. Ct. 103, 2 L. Ed. 2d 9 (1957) (reversing conviction when a witness gave a sworn statement in which he declared that he had given false testimony at trial); Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed 2d 104 (1972) (reversing conviction where the prosecution first stated that the prosecution had not promised a coconspirator that he would not be indicted if he testified before a grand jury, but later affidavits revealed that such a promise had indeed been made).
In-Court Identification
As noted above, Edwards had been shown a surveillance video of the robbery just before taking the stand. When asked by the prosecution if the man she had seen in the jewelry store was in the courtroom, she pointed to Thomas, the only black man in the courtroom. Before this, she had not yet identified a perpetrator. Defense counsel made a motion for mistrial, arguing that "what the State has done in asking her to identify Mr. Thomas in court is the same as a one-person lineup that is unconstitutionally suggestive." This motion was denied by the trial court.
Again, we review a trial court's decision on a motion for mistrial under the abuse of discretion standard. Greiff, 141 Wn.2d at 921. "[W]hen the issue is whether a witness may make an in-court identification after an earlier identification, it must be determined whether the earlier identification procedure was `so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" State v. McDonald, 40 Wn. App. 743, 746, 700 P.2d 327 (1985) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968)). The defendant bears the burden of establishing both that the identification procedures were impermissibly suggestive and that this suggestiveness created a substantial risk of irreparable misidentification. State v. Kinard, 109 Wn. App. 428, 433, 36 P.3d 573 (2001); State v. Maupin, 63 Wn. App. 887, 897, 822 P.2d 355 (1992). Several factors determine whether, in light of the totality of the circumstances, there is a substantial likelihood of irreparable misidentification. These include:
the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of [the witness'] prior description of the criminal, the level of certainty demonstrated [by the witness] at the confrontation, and the [length of] time between the crime and the confrontation.
Id.; see also State v. Ratliff, 121 Wn. App. 642, 649, 90 P.3d 79 (2004). In McDonald, the court reversed and remanded for new trial, finding that because the witness only observed the defendant for two to three minutes, was unsure as to whether he had a mustache, gave an inaccurate description of the defendant's clothing, and picked the wrong person at the lineup, the likelihood of irreparable misidentification was very substantial. McDonald, 40 Wn. App. at 747-49. However, other convictions have been affirmed because the identification factors are distinguishable from McDonald. Considering the totality the circumstances surrounding Edwards' identification of Thomas, we find that the potentially suggestive nature of viewing the surveillance video just before testifying does not outweigh the other indicators of reliability.
See State v. Maupin, 63 Wn. App. 887, 896-97, 822 P.2d 355 (1992) (finding no impermissibly suggestive identification when the witness was shown one picture of the defendant two days after the crime, but had seen him twice, gave an accurate description of his height, weight, color, type of hair and manner of dress, and unhesitatingly identified him in court and was available for cross-examination); State v. Traweek, 43 Wn. App. 99, 104, 715 P.2d 1148 (1986) (finding no impermissibly suggestive identification when the witness saw the defendant face to face, testified that she was watching them closely because their manner was odd, gave an accurate description of what the robbers were wearing, and immediately and positively identified the defendant at lineup) overruled on other grounds by State v. Blair, 117 Wn.2d 479, 816 P.2d 718 (1991); Manson v. Brathwaite, 432 U.S. 98, 99, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977) (finding no impermissibly suggestive identification based on one photograph when the witness had an opportunity to fully view the defendant face to face for two to three minutes, was a trained police officer, gave an accurate description within minutes of the crime, had no question that the photo depicted the defendant, and made his identification only two days after the crime).
Edwards testified that Thomas was in the store for about 45 minutes to an hour, though she only closely observed him for about 15 minutes. She gave a detailed and accurate description of what he was wearing, including a hat and sunglasses. She testified that she found it strange that he was wearing sunglasses when he came to look at jewelry. She testified that because she had worked in law enforcement and security, she had a habit of observing other people. According to Edwards, the defendant stood out to her because "[h]e was wearing a bright yellow jacket and he gave [her] the creeps." When asked by the prosecutor whether she saw the person who had been in the store in the courtroom, she pointed at Thomas. Finally, during cross-examination counsel asked whether she identified Thomas because he was the person she remembered being in the store or because he resembled the person in the videotape. Edwards responded "[b]ecause he is the person that was in the store that day." While this identification took place 21 months after the crime, Thomas has not demonstrated, in light of the rest of the circumstances, that there was a substantial likelihood of irreparable misidentification. The lineup was not unconstitutionally suggestive; Thomas' due process rights were not violated. The trial court did not abuse its discretion when it denied his motion for mistrial.
Equal Protection
In arguing his CrR 8.3 motion for governmental misconduct, Thomas submitted probable cause determinations detailing another robbery committed at the Farrell store in November of 2003. There, two white men held their victims at gunpoint, forced them into the back of the store, and duct-taped their hands and feet together. They were charged with three counts of first degree robbery and unlawful possession of a controlled substance. Thomas argues that this demonstrates selective prosecution in violation of his Equal Protection rights. The trial court denied this motion.
"Trial court rulings based on allegations of prosecutorial misconduct are reviewed under an abuse of discretion standard." State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999). Thomas must prove that the choice to charge him with kidnapping, when others similarly situated were not, "was deliberately based on an unjustifiable standard, such as race, religion, or other arbitrary classification." United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972). "Mere selectivity in prosecution creates no constitutional problem." Steele, 461 F.2d at 1151 (citing Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962)). Thomas provides no evidence, other than pointing out that the other robbers were white, that the choice to prosecute him for kidnapping was based on an unjustifiable standard such as race. His equal protection claim fails. The trial court did not abuse its discretion when it denied his CrR 8.3 motion.
Denial of Jury Instructions
Thomas' proposed instruction read "[a]n abduction which is merely incidental to the commission of a robbery and has no purpose except to further the commission of the robbery is not a kidnapping." The trial court rejected this instruction, concluding that it was an incorrect statement of the law under State v. Vladovic, 99 Wn.2d 413, 662 P.2d 853 (1983). A trial court has discretion to decide how instructions are worded. Ng, 110 Wn.2d at 41. Instructions are sufficient if they properly inform the jury of the applicable law without misleading the jury, and permit each party to argue its theory of the case. Gammon, 104 Wn.2d at 617. Since trial, the trial court's conclusion has been validated by State v. Louis: the crimes of robbery and kidnapping do not merge, even when the abduction is used to further the commission of a robbery. State v. Louis, 155 Wn.2d 563, 564, 120 P.3d 936 (2005). Thomas cannot argue this as a theory of his case. The instructions properly informed the jury of the applicable law. The trial court did not abuse its discretion when it declined to use Thomas' jury instructions.
Juror Bias
Thomas argues that because a juror using an assisted-hearing device acknowledged that he could hear sidebar conversations, that juror was biased and violated Thomas' 6th Amendment right to an impartial jury. Thomas asks this Court to find implied bias and reverse his conviction.
"Case law, the juror bias statute, our Superior Court Criminal Rules and scholarly comment all emphasize that the trial court is in the best position to determine a juror's ability to be fair and impartial. It is the trial court that can observe the demeanor of the juror and evaluate and interpret the responses." State v. Noltie, 116 Wn.2d 831, 839, 809 P.2d 190 (1991). A challenge for implied bias may be taken for any or all of four distinct causes, none of which apply here. RCW 4.44.180 The report of proceedings shows that the judge and both attorneys concluded that the sidebar conversations did not involve any information that would have prejudiced the juror. When asked by the judge whether he had heard anything from their sidebar conversations that was different from the testimony presented through the witness stand, the juror replied "[n]one whatsoever." He repeatedly replied "no" to further questioning from the judge. The circumstances here do not meet the definition of implied bias.
(1) Consanguinity or affinity within the fourth degree to either party.
(2) Standing in the relation of guardian and ward, attorney and client, master and servant or landlord and tenant, to a party; or being a member of the family of, or a partner in business with, or in the employment for wages, of a party, or being surety or bail in the action called for trial, or otherwise, for a party.
(3) Having served as a juror on a previous trial in the same action, or in another action between the same parties for the same cause of action, or in a criminal action by the state against either party, upon substantially the same facts or transaction.
(4) Interest on the part of the juror in the event of the action, or the principal question involved therein, excepting always, the interest of the juror as a member or citizen of the county or municipal corporation.
Specific vs. General Crimes
"General rules of statutory construction require that when a specific statute punishes the same conduct as a general statute, the specific prevails over the general." See State v. Smeltzer, 86 Wn. App. 818, 820, 939 P.2d 1235 (1997) (reversing conviction because a defendant should have been charged under the more specific failure to return from furlough statute rather than the general escape statute). Thomas cites the above case to support his belief that he should have been charged with unlawful imprisonment because it is more specific than kidnapping. The trial court rejected this argument when it denied Thomas' CrR 8.3 motion.
Again, we review the trial court's denial of Thomas' CrR 8.3 motion for abuse of discretion. Finch, 137 Wn.2d at 839. Unlawful imprisonment and kidnapping do not punish the same conduct: they are defined differently. "A person is guilty of unlawful imprisonment if he knowingly restrains another person." RCW 9A.40.040. Kidnapping requires more specific elements; "A person is guilty of kidnapping in the first degree if he intentionally abducts another person with intent . . . (b) To facilitate commission of any felony or flight thereafter." RCW 9A.40.020. Because he intentionally abducted his victims with the intent to facilitate a robbery, Thomas' conduct is most accurately reflected in the definition of kidnapping. The trial court correctly interpreted the law and did not abuse its discretion denying Thomas' CrR 8.3 motion.
Merger of Robbery, Kidnapping and Assault
Thomas argues that his robbery conviction should merge with his kidnapping convictions, and that his assault conviction should merge with his attempted robbery conviction. A recent decision by the Washington Supreme Court contravenes Thomas' argument. See Louis, 155 Wn.2d at 571.
In Louis, the defendant, while robbing a jewelry store, bound the two owners' hands and feet, covered their eyes and mouths with duct tape, and coerced them into a bathroom. Louis, 155 Wn.2d at 566-67. He warned them that if they left the bathroom he would kill them. Id. His victims "waited a few minutes before freeing themselves" and calling the police. Id. at 567. He was convicted of one count of first degree kidnapping and one count of first degree robbery for each victim. Id. at 567. On appeal, Louis argued that his convictions for kidnapping and armed robbery should have merged because the kidnappings were simultaneous and incidental to the robbery. Id. at 570. The court determined the crimes do not merge because proof of one is not necessary to prove the other. Louis, 155 Wn.2d at 571 (citing State v. Vladovic, 99 Wn.2d 413, 423-24, 662 P.2d 853 (1983); In re Pers. Restraint of Fletcher, 113 Wn.2d 42, 50, 53, 776 P.2d 114 (1989)). Proof of kidnapping is not necessary to prove first degree robbery, and proof of first degree kidnapping requires only the intent to commit robbery, not the completion of robbery. Louis, 155 Wn.2d at 571.
Because the facts are functionally identical, Louis controls, and Thomas' convictions for first degree kidnapping and attempted robbery do not merge. Similarly, first degree assault and first degree robbery do not merge because proof of assault is not necessary to prove first degree robbery, RCW 9A.56.200 and proof of first degree assault does not require proof of robbery. RCW 9A.36.011.
Robbery in the first degree:
(1) A person is guilty of robbery in the first degree if:
(a) In the commission of a robbery or of immediate flight therefrom, he or she:
(i) Is armed with a deadly weapon; or
(ii) Displays what appears to be a firearm or other deadly weapon; or
(iii) Inflicts bodily injury; or
(b) He or she commits a robbery within and against a financial institution as defined in RCW 7.88.010 or 35.38.060.
(2) Robbery in the first degree is a class A felony.
Assault in the first degree:
(1) A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm:
(a) Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death; or
(b) Administers, exposes, or transmits to or causes to be taken by another, poison, the human immunodeficiency virus as defined in chapter 70.24 RCW, or any other destructive or noxious substance; or
(c) Assaults another and inflicts great bodily harm
(2) Assault in the first degree is a class A felony.
We remand only for a recalculation of Thomas' firearm enhancement sentence, as conceded by the State. On all other counts, we affirm.
COX, J. and BAKER, J., concur.