Oral Argument: May 19, 2014.
As amended by order of the Court of Appeals January
Appeal fro Pierce County Superior Court. Docket No: 09-1-04643-5. Judge signing: Honorable Garold E Johnson . Judgment or order under review. Date filed: 02/24/2012.
Nancy P. Collins (of Washington Appellate Project ), for appellant.
Mark E. Lindquist, Prosecuting Attorney, and Kawyne A. Lund, Deputy, for respondent.
Authored by Rich Melnick. Concurring: Jill M Johanson. Dissenting: Lisa Worswick.
¶ 1 A jury found Charles Farnsworth guilty of first degree robbery, and the court sentenced him as a persistent offender to life without the possibility of parole. Farnsworth appeals, arguing that the evidence is insufficient to support his conviction. Because there was insufficient evidence of a threat, we agree with Farnsworth that there is insufficient evidence to support his robbery conviction. We affirm in part, vacate Farnsworth's robbery conviction, and remand for the trial court to sentence Farnsworth on first degree theft.
¶ 2 Charles Farnsworth and James McFarland ran out of heroin. To get money to buy more, they robbed a branch of the Harborstone Credit Union in Tacoma. McFarland, 69 years of age at the time, entered the branch wearing a wig and sunglasses. He approached a teller at the counter and handed her a note stating, " No die [sic] packs, no tracking devices, put the money in the bag." Clerk's Papers (CP) at 34. Although the teller became confused because McFarland did not actually have a bag, the teller handed him about $300 in cash from a drawer. McFarland said, " Thank you" and left. 9 Report of Proceedings (RP) at 485. McFarland entered a truck driven by 59-year-old Farnsworth, and together they left the scene. A few blocks away, they were pulled over and arrested.
¶ 3 The State charged both Farnsworth and McFarland with first degree robbery. Farnsworth's case went to trial. McFarland pleaded guilty to first degree theft and agreed to testify in Farnsworth's trial.
¶ 4 According to McFarland, he and Farnsworth had no money and had been evicted from the trailer they used as a " dope house." 13 RP at 1195. They were miserable from the effects of heroin withdrawal.
¶ 5 On the day of the instant crime, McFarland and Farnsworth spent six hours in the area near the credit union planning to steal from it. The initial plans called for McFarland to be the driver and Farnsworth to enter the credit union wearing a wig Farnsworth bought. But McFarland grew frustrated with Farnsworth's incessant " hem-hawing" and fidgeting with the wig. 13 RP at 1232. Finally, McFarland grabbed the wig and resolved to do the job himself. McFarland put the wig on his head and Farnsworth adjusted it for him.
¶ 6 Farnsworth then wrote a note and handed it to McFarland. McFarland did not know exactly what the note said, but he believed it contained instructions to the teller. McFarland explained that " whenever you're robbing a bank," tellers do exactly what they are told. 14 RP at 1254.
¶ 7 The trial court instructed the jury on both first degree robbery and the lesser included crime of first degree theft. At the conclusion of the trial, the jury found Farnsworth guilty of first degree robbery as an accomplice.
¶ 8 The sentencing court entered findings of fact and conclusions of law determining that Farnsworth was a persistent offender because he had previously committed two
most serious offenses. Accordingly, the court sentenced Farnsworth to life in prison with no possibility of parole. The sentencing court also imposed legal financial obligations on the basis of a boiler plate finding that Farnsworth has an ability or likely future ability to pay.
¶ 9 Farnsworth appeals from his judgment and sentence.
Sufficiency of the Evidence
¶ 10 Farnsworth argues that the evidence is insufficient to support his conviction as an accomplice to first degree robbery. We agree. Considering all of the facts presented to the jury, we conclude there is insufficient evidence of a direct, inherent, explicit, or implicit threat to uphold a conviction for robbery. There is also insufficient evidence that Farnsworth agreed to participate in any crime other than a theft from a financial institution. Accordingly, we hold that there is insufficient evidence to support Farnsworth's robbery conviction.
¶ 11 When a defendant challenges the sufficiency of the evidence supporting his conviction, we examine the record to decide whether any rational fact finder could have found that the State proved each element of the offense beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In a sufficiency of the evidence challenge, the defendant admits the truth of all the State's evidence; therefore, we consider the evidence and all reasonable inferences from it in the light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Further, direct evidence and circumstantial evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
¶ 12 The term " robbery" is defined in RCW 9A.56.190.
A person commits robbery when he or she unlawfully takes personal property from the person of another or in his or her presence against his or her will by the use or threatened use of immediate force, violence, or fear of injury to that person or his or her 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.
¶ 13 A robbery conviction can be supported by evidence of any threat that induces an owner to part with his property. State v. Handburgh, 119 Wn.2d 284, 293, 830 P.2d 641 (1992). The Criminal Code defines a threat to include any direct or indirect communication of intent to cause bodily injury, to damage property, or to physically confine or restrain another person. RCW 9A.04.110(28)(a)-(c). Thus, when a rational fact finder could reasonably infer from the evidence that a defendant's note made an implied threat to a bank teller, the evidence is sufficient to establish the disputed element of robbery . State v. Shcherenkov, 146 Wn.App. 619, 628-29, 191 P.3d 99 (2008).
¶ 14 Here, when viewing the evidence in the light most favorable to the State, McFarland and Farnsworth intended to steal money from a financial institution. The original plan involved Farnsworth putting on a disguise, entering the financial institution, and presenting the teller with a demand note. Farnsworth wrote the note, which said, " No die [sic] packs, no tracking devices, put the money in the bag." CP at 34. However, when it came time to execute the plan, McFarland became frustrated with Farnsworth. As a result, McFarland wore the disguise, entered the bank, and made the demand. The teller became frightened and handed money to McFarland. He then exited
the bank and entered the vehicle driven by Farnsworth.
¶ 15 The present circumstances differ from Shcherenkov, 146 Wn.App. 619, and State v. Collinsworth, 90 Wn.App. 546, 966 P.2d 905 (1997). In Shcherenkov, this court found the evidence sufficient to support convictions following four bank robberies where no force or violence was used. 146 Wn.App. at 622. In three of the robberies, the robber passed each bank teller a note that stated in part, " 'This is a robbery.'" Shcherenkov, 146 Wn.App. at 622-23. In the fourth, the robber's note stated in its entirety, " 'Place $4,000 in an envelope. Do not make any sudden movements or actions. I will be watching you.'" Shcherenkov, 146 Wn.App. at 629. The robber also kept his hand in his pocket, causing the tellers to believe he had a gun. Shcherenkov, 146 Wn.App. at 622-23. This court held that a rational fact finder could reasonably infer that each of the four notes indirectly communicated a threat to use force if the teller failed to comply and the robber insinuated he had a weapon by keeping his hand in his pocket. Shcherenkov, 146 Wn.App. at 628-29.
¶ 16 Likewise, in Collinsworth, the court found the evidence sufficient to support robbery convictions where a robber, in six separate incidents, verbally demanded cash from a bank teller without displaying a weapon or articulating an overt threat. 90 Wn.App. at 553-54. In three of the robberies, the robber used a " 'direct,'" " 'demanding,'" or " 'serious'" voice. Collinsworth, 90 Wn.App. at 548-50. In two of them, the robber told the teller he was " serious" after the teller failed to immediately comply. Collinsworth, 90 Wn.App. at 548, 550. And, two of the tellers believed the robber was armed although they did not actually see a weapon. Collinsworth, 90 Wn.App. at 549-50. In all six incidents, the teller testified either to feeling personally threatened or to fearing for the safety of others. Collinsworth, 90 Wn.App. at 548-51. And in four of the six incidents, the teller gave the robber money in accordance with a bank policy of compliance with such demands. Collinsworth, 90 Wn.App. at 548-50.
¶ 17 Here, there is insufficient evidence for a reasonable trier of fact to find the State proved beyond a reasonable doubt that Farnsworth planned to communicate to the teller an intent to use or threaten to use immediate force, violence, or fear of injury. McFarland simply handed over a note instructing the teller to " put the money in the bag." CP at 34. McFarland did not insinuate that he would take further action if the teller did not comply with the note's instructions. Unlike the tellers in Shcherenkov and Collinsworth who, based on the defendant's actions, believed the robbers may have been armed, there is no such testimony here. And, in fact, there is no evidence that McFarland made threats or used violence. After receiving the money, he said, " Thank you." 9 RP at 485.
¶ 18 Contrary to the dissent's argument, the facts of this case do not show even a slight threat, either implicit or explicit. The dissent implies a threat based on the victim's reactions and not the defendant's actions. Unquestionably and justifiably the victim was scared; however, there is nothing in the record, directly or circumstantially, to support a reasonable trier of fact finding beyond a reasonable doubt that McFarland made an implied threat to use force, violence, or fear of injury to any person.
¶ 19 Another major distinguishing factor in this case from the preceding two cases is that Farnsworth acted as an accomplice, not a principal.
¶ 20 A person may be liable for the acts of another if he or she is an accomplice. RCW 9A.08.020(1), (2)(c). A person is an accomplice of another person in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she aids or agrees to aid such other person in planning or committing it. RCW 9A.08.020(3).
¶ 21 " But, the accomplice liability statute has been construed to apply solely when the accomplice acts with knowledge of the specific crime that is eventually charged, rather
than with knowledge of a different crime or generalized knowledge of criminal activity." State v. Holcomb, 180 Wn.App. 583, 590, 321 P.3d 1288, review denied, 180 Wn.2d 1029 (2014); State v. Cronin, 142 Wn.2d 568, 578-79, 14 P.3d 752 (2000); State v. Roberts, 142 Wn.2d 471, 512, 14 P.3d 713 (2000). " And the required aid or agreement to aid the other person must be 'in planning or committing [the ...