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State v. Fiso

November 25, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
FABIAN WAI FISO, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-8-02994-1. Date filed: 06/07/95. Judge signing: Hon. Mary W. Brucker.

Authored by Walter E. Webster. Concurring: C. Kenneth Grosse, William W. Baker.

The opinion of the court was delivered by: Webster

WEBSTER, J. -- Fabian Fiso, a juvenile, appeals his conviction for second degree attempted robbery, arguing that the evidence was insufficient to prove the charge beyond a reasonable doubt. Rather, he argues, his conduct only demonstrated extortion (a crime for which he was not charged), because he only threatened harm if the victim did not bring him money in the future. Because the evidence demonstrates that he also made immediate threats, it is sufficient to support a conviction for attempted robbery.

Therefore, we affirm.

FACTS

Fiso and the victim, Jason Sullivan, both attended the same middle school. Fiso approached Sullivan and asked him for fifty cents. Sullivan told him that he had no money, but would bring some the next day. Fiso threatened to beat him up if he did not give it to him right then.

On another day, Fiso again requested money from Sullivan and threatened to beat him up if he did not comply. Again Sullivan refused because he had no money. Fiso pushed his fist into Sullivan's stomach and warned him that he would beat him up the next day if he failed to bring the money. The following day, Fiso approached Sullivan a third time, asked for ten dollars, and threatened to beat him up if he refused. Again, Sullivan had no money.

Discussion

Fiso contends that the evidence was not sufficient to prove beyond a reasonable doubt that he had the specific intent to commit robbery. In reviewing the sufficiency of the evidence, we examine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, viewing the evidence in the light most favorable to the State. State v. Kleist, 126 Wash. 2d 432, 435, 895 P.2d 398 (1995). A challenge to the sufficiency of the evidence admits the truth of the State's evidence and all inferences that can reasonably be drawn therefrom. State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992).

Fiso was convicted of attempted robbery. A person is guilty of attempt if he (1) does an act that is a substantial step toward commission of the crime, (2) with the intent to commit the specific crime. RCW 9A.28.020(1). One commits robbery when he (1) unlawfully takes personal property from the person of another, (2) against his will by the use of immediate force, violence, or fear of injury to the person. RCW 9A.56.190. Intent to steal is an essential element of the crime of robbery. State v. Kjorsvik, 117 Wash. 2d 93, 98, 812 P.2d 86 (1991). The intent to commit a crime may be inferred from the defendant's conduct and surrounding facts and circumstances if they plainly indicate such an intent as a matter of logical probability. State v. Woods, 63 Wash. App. 588, 591, 821 P.2d 1235 (1991).

Fiso argues that he did not intend to steal because he wanted Sullivan to give him money consensually. Our Supreme Court has held that the "chief distinction between robbery and extortion is that, to commit [robbery] the taking must be without the consent of the person robbed, while in extortion the taking is with consent." State v. Casto, 120 Wash. 557, 558, 207 P. 952 (1922). In that case, the defendant drew a gun on the victim, threatened to hurt him, and then received money from him. Id. Although the defendant there argued that his conduct was extortion, not robbery, the court recognized that the question of whether the money was taken by force against the victim's consent was one for the jury. Id. Thus, the fact that the victim hands over his property in response to a threat, does not necessarily render his conduct consensual. See also Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 707 (1972) (no real difference between robbery and extortion as to consent because both require that the defendant's threats induce the victim to give up his property, which he would not otherwise have done). The fact that Fiso hoped that his threats would induce Sullivan to give him money does not make his actions extortion rather than robbery.

Fiso also argues that his conduct was extortion, rather than robbery, because he threatened future, not immediate, harm. Threats of immediate bodily harm are associated with the crime of robbery, while threats of future harm will ordinarily constitute extortion. People v. Krist, 97 Mich. App. 669, 296 N.W.2d 139, 143 (1980), cited with approval in City of Seattle v. Allen, 80 Wash. App. 824, 830-31, 911 P.2d 1354 (1996). Fiso is correct that, had he merely threatened Sullivan with future harm, only extortion would be shown.

Here, however, Fiso began each encounter by demanding money right then. Sullivan testified that, on the first day, Fiso asked for money and Sullivan responded that he did not have any, but would bring some the next day. Fiso replied that "if you don't give it to me right now, I'll beat you up." On the second day, Fiso said "if you don't have my money right now, I'll beat you up." On the third day, after Sullivan told him that he had no money, Fiso said "if you don't give it to me right now, I'll embarrass you [beat him up] in front of the whole class." The conduct in each of these encounters (asking for money coupled with an immediate threat of harm) demonstrates an intent to steal. The fact that the crime was impossible because Sullivan had no money is not a ...


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