State v. Clark, No. 48038-3-I (Wash. App. 12/29/2003)
| Decision Date | 29 December 2003 |
| Docket Number | No. 48038-3-I,48038-3-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. STEVEN JOSEPH CLARK, Appellant. |
Appeal from Superior Court of King County. Docket No: 99-1-09431-6. Judgment or order under review. Date filed: 05/19/2000.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Thomas Michael Kummerow, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
David M Seaver, King Co Pros Office, W554, 516 3rd Ave, Seattle, WA 98104-2390.
Even where a defendant is neither armed nor displays a weapon, evidence is sufficient to show he committed second degree robbery where he entered two different banks on two different days, presented notes indicating he was engaging in a robbery, engaged in other threatening behavior or made implicit threats in the notes, and received bank money from the fearful tellers. Affirmed.
On October 5, 1999, Clark entered a Wells Fargo branch in Kirkland, held out a piece of paper, and said to the teller, `I was wondering if you can cash this.' The teller, working alone, looked at the paper and saw the words `robbery' and `large bills.' The teller initially replied, `I don't believe I can cash that.' He then suddenly realized that it was a robbery note and reached for the alarm. He testified that Clark said to him, `Don't do that.' in what the teller believed was a forceful manner. The teller testified that he saw Clark make a motion into his jacket `like he had some kind of weapon in there' and decided to give Clark money. Clark continued to stand, leaning over the counter and the seated bank teller as the teller placed large bills on the countertop. After the teller placed money on the counter, Clark said, The bank employee complied, giving Clark about $820 in mostly $50 and $20 bills. After Clark left the bank, the bank employee tripped the alarm. The bank employee testified he was shocked about being robbed and scared during the incident although he never saw a weapon. The bank teller identified Clark in a police photo montage two weeks later, and identified him in court, as the person who had robbed the bank.
On October 26, 1999, Clark entered a Key Bank in Woodinville wearing sunglasses and a hat, and set a note in front of one of the bank tellers. The bank was not crowded and the teller was separated from the other two tellers by two or three empty teller spaces. The teller saw written on the note the words `this is a' and the word `ROBBERY' written in big letters. The note also indicated she was to give Clark all the loose cash and not to draw attention to herself or make a scene. The teller testified that she looked at Clark to see if he was making a joke, but Clark's body language made her realize it was not a joke.
The bank teller asserted she was `terribly afraid' of what was going to happen, and that she handed Clark about $1,600. She testified that as soon as Clark started to turn, she pulled the alarm. She said that she did not see a weapon, but that as Clark was walking away she was afraid to say anything fearing that he would react violently or shoot someone. Clark's photograph was taken by video cameras in the bank. The Key Bank teller also identified Clark in court as the person who had robbed the bank. Clark was identified, arrested, and charged with two counts of second degree robbery. He admitted his culpability to the investigating detective. However, Clark testified at trial that he was not armed during either of the robberies, never threatened either teller, and that he would have turned and left the bank had either teller refused to give him money. After presentation of the evidence at trial, Clark requested a lesser included instruction on first degree theft. After examining existing case law, the court refused the instruction, finding that first degree theft was not a lesser included crime of robbery in the second degree because theft in the first degree required taking of property in excess of $1,500, while robbery did not require any amount.
The jury found Clark guilty as charged on both counts. At sentencing, the State presented evidence of Clark's prior conviction for second degree assault, two prior convictions for second degree robbery, and two prior convictions for second degree burglary. The court found that the prior convictions for second degree assault and second degree robbery were most serious offenses as defined by the Sentencing Reform Act of 1981 (SRA).1 After finding the existence of the prior convictions by a preponderance of the evidence, and after Clark spoke during the proceedings, the court sentenced Clark to a mandatory term of life imprisonment without possibility of parole under the Persistent Offender Accountability Act (POAA).2 Clark appealed.
In order to establish robbery in the second degree, the State was required to prove the Clark took the property `by the use or threatened use of immediate force, violence, or fear of injury . . . .'3 Clark asserts there was insufficient evidence for the State to prove he took money from the bank tellers by the use or threatened use of immediate force, violence, or fear of injury, because he carried no weapon and made no verbal threats. By challenging the sufficiency of the evidence, Clark admits the truth of the State's evidence and all reasonable inferences therefrom.4 This court must determine, after viewing the evidence in a light most favorable to the State, whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.5
Washington cases have previously held that the specific types of actions that Clark engaged in constitute `threatened use of immediate force, violence, or fear of injury' sufficient for robbery, even in the absence of a weapon. For instance, in State v. Collinsworth, the defendant claimed that because he did not carry a weapon during several robberies and merely demanded money in a calm voice, no evidence of threatened use of force existed. This court disagreed, asserting: `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.'6
The Collinsworth court concluded that the defendant's demands for money communicated directly to the teller, and the teller's subsequent fear, were sufficient to support the trial court's findings that the defendant obtained property through use of or threatened use of immediate force, violence, or fear of injury.7
In State v. Parra, the defendant similarly claimed the evidence was insufficient to support his conviction for second degree robbery because he was not armed when he approached two bank tellers and demanded money.8 This court held that the defendant's demands for money, coupled with the tellers' fear, illustrated that the taking of property was accompanied by "`such threatening by menace, word, or gesture as in common experience is likely to create an apprehension of danger,'" and thus was sufficient to prove an implicit threat of force and sufficient to support the defendant's conviction.9
Clark's actions were sufficient to prove that he obtained property in each situation through use of or threatened use of immediate force, violence, or fear of injury. In both situations Clark approached the bank tellers and gave them a note communicating that he intended a robbery. The Wells Fargo teller was alone in the branch and Clark leaned over him, prevented him from pressing the alarm, motioned into his jacket, and asked for more money. The bank employee stated that he was fearful. With respect to the Key Bank incident, the note also informed the teller not to engage in any action that would draw attention to her and not to make a scene. The teller testified that she feared he would hurt someone.
Clark cites United States v. Wagstaff to support his contention that his actions were not threatening because, like the defendant in Wagstaff, he carried no weapon and did not talk to the tellers.10 Clark's assertions are untrue, because he did speak to the Wells Fargo teller when he demanded more money than he was initially given. This case is also inapplicable because it is premised upon a federal robbery statute, not the specific Washington statute here. Further, unlike the defendant in Wagstaff, Clark did communicate his demands directly to the tellers by both note and voice. These were situations that Wagstaff recognized would constitute `intimidating' acts under the federal statute.11
Viewing the evidence in a light most favorable to the State, we hold that the evidence was sufficient to determine that Clark took the property through threatened use of force, violence, or fear of injury, and was thus sufficient to support Clark's two convictions for second degree robbery.
Washington law provides that a defendant may be found guilty of a lesser offense which is necessarily included within the offense for which he is charged in the information.12 Clark argues that the trial court erred in refusing to give an instruction on first degree theft13 as a lesser included offense of second degree robbery.
State v. Workman firmly established that a defendant in Washington is entitled to an instruction on a lesser included offense where (1) each of the elements of the lesser offense is a necessary element of the offense charged, and (2) the evidence in the case supports an inference that only the lesser crime was committed to the exclusion of the charged...
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