State v. Farnsworth

• Decision Date: 23 June 2016
• Docket Number: No. 91297–1,91297–1
• Citation: 185 Wash.2d 768,374 P.3d 1152
• Court: Washington Supreme Court
• Parties: State of Washington, Petitioner, v. Charles Verdel Farnsworth, Jr., Respondent.

185 Wash.2d 768

374 P.3d 1152

State of Washington, Petitioner

v.Charles Verdel Farnsworth, Jr., Respondent.

No. 91297–1

Supreme Court of Washington, En Banc.

Filed June 23, 2016

James S. Schacht, Deputy Prosecuting Attorney, Prosecuting Attorney Pierce County, Pierce County Prosecuting Attorney, 930 Tacoma Avenue S. Room 946, Tacoma, WA, 98402–2102, Counsel for Petitioner.

Nancy P. Collins, Washington Appellate Project, 1511 3rd Avenue Suite 701, Seattle, WA, 98101–3647, Counsel for Respondent.

OWENS, J.

Robbery and theft are closely related crimes. While both offenses involve stealing money or property, theft is elevated to robbery where the defendant uses force or threatened force to take the property. The main question in this case is whether certain conduct constituted a “threat of force,” making the crime a robbery, not a theft. The legislature has broadly defined “threat” to specifically include “indirect[ ]” threats. RCW 9A.04.110(28). We have established in our case law that a threat need not be explicit to qualify—a threat can be implied by words or conduct. As we recently held, where an ordinary person could reasonably infer a threat of harm from the defendant's conduct, the defendant made an implied threat of force. State v. Witherspoon , 180 Wash.2d 875, 884, 329 P.3d 888 (2014). Today, we are asked to decide whether, under the circumstances here, respondent Charles Farnsworth's handwritten note demanding money from a bank teller contained an implied threat of force.

¶ 2 Although the note did not convey an explicitly threatening message, we believe it was laden with inherent intimidation. When a person demands money at a bank, with no explanation or indication of lawful entitlement to money, it can imply a threat of force because without such a threat, the teller would have no incentive to comply. An ordinary bank teller could reasonably infer an implied threat of harm under these circumstances. Because of this implicit threat, banks have security guards and distinctive policies in place to prevent harm flowing from precisely these types of encounters. As Farnsworth's partner in crime explained, they were well aware that banks generally instructed their employees to react to such notes as if they contained an explicit threat; in fact, the pair relied on that knowledge and fear to commit this crime. In this context, we hold that there is sufficient evidence that the pair's conduct implied a threat of harm.

¶ 3 Additionally, Farnsworth asks us to find that cumulative trial court errors deprived him of a fair trial. We find that no errors accumulated to deprive Farnsworth of a fair trial. Consequently, we affirm Farnsworth's conviction for first degree robbery.

FACTS

¶ 4 On October 15, 2009, Farnsworth and James McFarland were suffering heroin withdrawals and had no money to purchase more. The pair made a plan to “rob” a bank. 13 Report of Proceedings (RP) at 1208, The plan was for McFarland to wait outside in the car while Farnsworth entered a bank wearing a wig and sunglasses as a disguise, and retrieve money. Farnsworth would present the note to the teller, which read, “No die [sic] packs, no tracking devices, put the money in the bag.” Clerk's Papers (CP) at 34.

¶ 5 Farnsworth was “hem and hawing” while driving around, and McFarland grew increasingly frustrated with him, until he finally reached his breaking point. 13 RP at 1233. He grabbed the wig and note from Farnsworth's hands and entered the bank to carry out their plan, While Farnsworth waited outside in the car, McFarland approached a teller's counter, leaned through her window, and handed her the note. The teller, Sarah Van Zuyt, testified that she instantly knew she was being robbed when she read the note. She said she was “scared” and “in shock.” 9 RP at 484. Ms. Van Zuyt complied with the demand “[b]ecause I didn't want anybody else to get harmed, and I didn't know what he was capable of doing.” Id . at 486. She handed him about $300 in small bills, and McFarland left. Farnsworth and McFarland drove away, but they were pulled over and arrested a few blocks from the bank.

¶ 6 Both Farnsworth and McFarland were charged with first degree robbery pursuant to RCW 9A.56.200(1)(b) (robbery committed in a financial institution). Farnsworth faced the possibility of a life sentence under the Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1981 if convicted of this robbery, as he was previously convicted of a 2004 robbery and a 1984 vehicular homicide in California. Ch, 9.94A RCW. The POAA requires a life sentence when a repeat offender commits a third felony that is classified as a “most serious offense” (often referred to as a “third strike”). RCW 9.94A.570, .030(33), (38).

¶ 7 Likewise, McFarland faced a life sentence under the POAA, as he also had prior convictions of crimes classified as most serious offenses. He agreed to a plea bargain for an 8- to 10-year sentence instead of a life sentence, whereby McFarland would testify against Farnsworth in Farnsworth's jury trial for robbery. McFarland agreed to testify against Farnsworth after Farnsworth acted rudely toward McFarland while staying at Western State Hospital following arrest, 15 RP at 1430–31.

¶ 8 The jury was instructed on both first degree theft and first degree robbery; it unanimously convicted Farnsworth of first degree robbery, and, per the jury instructions, it did not consider the lesser-included crime of first degree theft. The trial court found that the conviction was his third strike under the POAA and sentenced him to life in prison without the possibility of release.

¶ 9 Farnsworth appealed, arguing that the evidence was insufficient to support robbery because (1) there was no threat of force and (2) he agreed to aid only a theft, not a robbery. Division Two of the Court of Appeals agreed, vacated his robbery conviction, and remanded to the trial court for sentencing on first degree theft. State v. Farnsworth , 184 Wash.App. 305, 314, 348 P.3d 759 (2014) (published in part). Farnsworth also argued that he was deprived of a fair trial under the cumulative error doctrine, raising six claimed errors. In the unpublished portion of its opinion, the Court of Appeals found only one suspect error, which it deemed harmless. State v. Farnsworth , 184 Wash.App. 305, 348 P.3d 759 (unpublished portion) at 14, 19 (2014). Although raised by Farnsworth, the Court of Appeals did not reach the issue of whether his earlier out-of-state conviction counted as a strike for purposes of the POAA because once his robbery conviction was vacated, the POAA was not implicated. Id . at 20.

¶ 10 The State petitioned this court for review, arguing that the Court of Appeals erred in finding insufficient evidence of a threat and of Farnsworth's accomplice liability. Farnsworth cross petitioned, again raising five of his claimed trial court errors and claiming his California conviction should not count as a strike for purposes of the POAA, We granted discretionary review of both the petition and cross petition. State v. Farnsworth , 183 Wash.2d 1001, 349 P.3d 856 (2015).

ISSUES

¶ 11 1. Was there sufficient evidence of a threat of force under these circumstances?

¶ 12 2. Does the evidence show that Farnsworth had the requisite knowledge to be liable as an accomplice to robbery?

¶ 13 3. Do Farnsworth's claimed trial court errors warrant reversal of his conviction?

¶ 14 4. Does Farnsworth's out-of-state conviction compare to a strike for purposes of sentencing under the POAA?

ANALYSIS

1. Sufficient Evidence Supports an Implied Threat of Force under These Circumstances

¶ 15 We are first asked to decide whether there was sufficient evidence of a threat of force during the crime. Specifically, the State asks us to reverse the Court of Appeals' finding that the use of the demand note here was insufficient to show any implicit or explicit threat of force. For the reasons explained below, we hold that under these circumstances—including the use of a demand note with no claim of legal entitlement to the money, the note's reference to dye packs, and the defendants' awareness that banking personnel would treat the note as a threat—there was sufficient evidence of an implied threat of force.

¶ 16 In a challenge to the sufficiency of the evidence, we must examine the record to determine whether any rational finder of fact could have found that the State proved each element beyond a reasonable doubt. State v. Green , 94 Wash.2d 216, 221, 616 P.2d 628 (1980). When a defendant challenges the sufficiency of the evidence, he or she admits the truth of all of the State's evidence. State v. Homan , 181 Wash.2d 102, 106, 330 P.3d 182 (2014). In such cases, appellate courts view the evidence in the light most favorable to the State, drawing reasonable inferences in the State's favor. Id . Circumstantial and direct evidence are to be considered equally reliable. State v. Thomas , 150 Wash.2d 821, 874, 83 P.3d 970 (2004).

¶ 17 At issue in this case is whether there was sufficient evidence of a threat of force during the crime. That is because the distinguishing element between robbery and theft is the use or threatened use of force, Robbery is committed when a person unlawfully takes the property of another “by the use or threatened use of immediate force, violence, or fear of injury to that person....” RCW 9A.56.190. Theft, on the other hand, does not require any use of force. It is simply the wrongful taking of the property of another with intent to deprive him or her of such property, RCW 9A.56.020(1)(a).

¶ 18 Washington's criminal code defines “threat” as “to communicate, directly or indirectly the intent” to take a certain action. RCW 9A.04.110(28) (emphasis added). In many robberies, the threat of force is explicit. For instance, a robber might directly communicate to a teller, “Hand over the money, or I will shoot you.” Other times, the threat is clearly implied by conduct, such as pointing a gun at a bank...