State v. Bowman

• Decision Date: 05 March 1984
• Docket Number: No. 11575-8-I,11575-8-I
• Citation: 36 Wn.App. 798,678 P.2d 1273
• Parties: STATE of Washington, Respondent, v. Ronnie Eugene BOWMAN, Appellant.
• Court: Washington Court of Appeals

Page 798

36 Wn.App. 798

678 P.2d 1273

STATE of Washington, Respondent, v. Ronnie Eugene BOWMAN, Appellant.

No. 11575-8-I.

Court of Appeals of Washington Division 1.

March 5, 1984.

Review Denied May 11, 1984.

Washington Appellate Defender Julie A. Kesler, court-appointed, Seattle, for appellant.

Norman K. Maleng, King County Pros. Atty., Deanna Jennings-Fuller, Deputy Pros. Atty., Donna Fisher, Legal Intern, Seattle, for respondent.

SWANSON, Judge.

Ronnie Eugene Bowman, a/k/a Ronald Eugene Jackson, a/k/a Sammie Jackson (Bowman), appeals his convictions of multiple criminal offenses of rape, burglary, robbery, kidnapping, theft, negligent homicide, felony flight, as well as his sentences rendered pursuant to deadly weapon, firearm, and habitual criminal findings. His convictions and sentences result from charges filed in two separate causes consolidated for this appeal.

In the first cause hereinafter referred to as the "negligent homicide case" Bowman was convicted of attempting to elude a pursuing police officer contrary to RCW 46.61.024 ("felony flight") and negligent homicide after a jury trial on July 1, 1981. ¹

The second cause involves a 13 count amended information hereinafter referred to as the "rape cases." ² The "rape cases" stem from three separate incidents of alleged first degree rape and other criminal offenses which were severed for trial and heard by three separate juries. ³

The trial of the first of the "rape cases," the alleged rape of a Seattle housewife, hereinafter referred to as Mrs. G., counts 1 through 5, resulted in a June 17, 1981 guilty verdict, and special verdict deadly weapon and firearm findings, as to all five counts.

The second jury trial heard on June 18, 1981 involved counts 6 and 7, burglary and robbery charges, and resulted in a not guilty verdict.

The third jury trial, including counts 8 through 13, involved two separate rape incidents wherein a university student and a Seattle career woman, hereafter referred to as Ms. H. and Mrs. R. respectively, were the victims. The jury returned a guilty verdict on June 29, 1981 on all counts and by special verdict found that the defendant had been armed with a deadly weapon during the commission of each of the crimes charged and specifically with a firearm on counts 8 through 10.

After the verdicts were rendered in the three prior trials, the State filed a supplemental information under the "rape cases" cause number alleging Bowman to be a habitual offender. Based upon three prior guilty pleas, the jury returned with a habitual criminal finding.

Thereafter, judgment and sentence was entered in each cause on March 23, 1982 and this appeal followed. We affirm in part and reverse in part.

I. NEGLIGENT HOMICIDE AND "FELONY FLIGHT" CASE

Bowman contends that the judgment and sentence for attempting to elude a pursuing police officer in violation of RCW 46.61.024 ("felony flight"), must be vacated because RCW 46.61.024 was not in effect during the time the acts that formed the basis for the charge allegedly occurred. We agree. The State acknowledges in its brief that Bowman committed the offense during a period when the Legislature had inadvertently decriminalized the offense. State v. Weber, 99 Wash.2d 158, 659 P.2d 1102 (1983). Consequently, we reverse the "felony flight" conviction. ⁴

II. THE "RAPE CASES"

A. FIRST RAPE TRIAL (COUNTS 1 to 5)

On the basis of the evidence presented, a jury was entitled to find that on December 22, 1980, Bowman broke into the home of Mrs. G. and robbed and raped her at gun point. He also robbed Mrs. G's daughter at gunpoint. Although Bowman had threatened to shoot, no bullets were fired and no gun was discovered or introduced into evidence.

The jury found Bowman guilty of having committed first degree burglary (count 1), first degree rape (count 2), first degree theft (count 5), and two counts of first degree robbery (counts 3 and 4), all committed while armed with a deadly weapon and firearm. At sentencing and under the authority of State v. Workman, 90 Wash.2d 443, 453, 584 P.2d 382 (1978) and State v. Hale, 26 Wash.App. 211, 611 P.2d 1370 (1980), rev. denied, 95 Wash.2d 1030 (1981), the court struck the firearm findings as to all counts except first degree theft.

Bowman does not challenge the sufficiency of the evidence to support the convictions under counts 1 to 5. He assigns error, however, to the court's entering "deadly weapon" and "firearm" special verdicts to counts 1 to 5 and count 5 respectively. He asserts that there was insufficient evidence to prove the existence of a real, operable gun in fact.

The special verdict forms specifically required the jury to be "satisfied beyond a reasonable doubt" that Bowman was armed with a deadly weapon/firearm in fact at the time that he committed the crimes. Thus, this fulfilled the requirements of State v. Pam, 98 Wash.2d 748, 659 P.2d 454 (1983) and State v. Tongate, 93 Wash.2d 751, 613 P.2d 121 (1980).

The remaining question raised by Bowman's assignment of error is whether there is sufficient evidence viewed in the light most favorable to the State from which a rational trier of fact could conclude beyond a reasonable doubt that Bowman was armed with a real gun during the commission of these crimes. State v. Green, 94 Wash.2d 216, 616 P.2d 628 (1980). The State need not introduce the actual deadly weapon at trial. "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." Tongate, at 754, 613 P.2d 121.

The record contains sufficient evidence to support the jury's conclusion: Mrs. G. 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. Further, the defendant's threats to use the gun added additional credence to the jury's conclusion.

[A defendant's] express verbal threat to "shoot" his victim necessarily implied that he had access to a firearm capable of killing or seriously injuring his victim. We have previously held that a firearm is unambiguously a deadly weapon.

State v. Hentz, 99 Wash.2d 538, 541, 663 P.2d 476 (1983). After a careful review of the record, we are convinced that there is sufficient evidence to support the firearm and deadly weapon findings.

B. SECOND RAPE TRIAL (COUNTS 8 to 13)

This trial, as was previously mentioned, involved two allegedly similar episodes of rape. The counts arising from these episodes were initially severed, but subsequently ordered rejoined and tried together.

In the first incident, the victim, Ms. H., testified that on March 10, 1981, Bowman approached her in the Lander Hall parking garage at the University of Washington, shielding his face with one hand and pointing a gun at her with the other. He robbed her of money and keys, directed her to a darkened stairwell, forced her to strip, raped her, and then fled in her car.

The jury convicted Bowman of first degree rape (count 8), first degree robbery (count 9), and first degree theft (count 10), all committed while armed with a deadly weapon and firearm. The firearm findings, however, were struck at sentencing pursuant to Workman, supra, and Hale, supra.

Bowman asserts that the deadly weapon findings are not supported in the record. We disagree. As discussed above, the special verdict forms, which were identical to those in the trial of counts 1 to 5, suffered no infirmity. Further, there was substantial evidence that Ms. H. thought the gun brandished about was real. She had been acquainted with guns and described Bowman's gun in detail.

Our Supreme Court recently rejected the argument posed in Bowman's next assignment of error. A defendant's threat to use a deadly weapon although armed only with a toy gun will support a first degree rape conviction. State v. Hentz, supra. It is the credibility of the threat, however, which forms the fulcrum upon which the evidence must balance. Because the record contains sufficient evidence to support the jury's special verdict that Bowman was armed with an actual weapon, it also establishes a fortiori that Bowman's threats were credible. Therefore, the elevation of the rape of Ms. H. to first degree must stand.

The other rape victim, Mrs. R., testified that at approximately 3:00 p.m. on February 3, 1981, she was placing packages into her car in the Bon Marche parking garage in downtown Seattle. Just then a man approached her from behind, clasped his gloved hand over her mouth, held a knife to her throat, and ordered her into the car. She glanced slightly back and saw that her assailant was a black man. While sliding over to the passenger seat, she caught another glimpse of her assailant in the rearview mirror. He demanded her money and jewelry and ordered her to tie her coat belt about her eyes. He drove the car to another parking garage, ordered her into the back seat, and raped her at knife point.

He then locked her in the trunk and drove around for awhile. After stopping, he opened the trunk, threatened to rape her again, took her watch and wedding ring, fixed the trunk so she could get out, commanded her to remain there for at least thirty minutes, and threatened her and her children with severe reprisals should he ever be caught.

Trial evidence included Mrs. R's purse which was found three days later and which was branded with Bowman's fingerprints. The State also introduced evidence associated with the similarly perpetrated rape/robbery/theft of Ms. H. (counts 8 to 10) to establish the identity of Mrs. R's assailant. At trial, Mrs. R. identified Bowman (the only black man in the courtroom) as her assailant, although she had been unable to identify Bowman in a previous line-up and, in fact, had identified another man as her assailant. Additionally, laboratory evidence and expert testimony was introduced which established that Bowman was among the one-third of...