State v. Puga
| Decision Date | 18 January 2011 |
| Docket Number | 65063-7-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. MOSES PUGA, Appellant. |
UNPUBLISHED OPINION
Puga was convicted of first degree robbery. Puga alleges that the charging document was constitutionally insufficient. He also contends the trial court erred by failing to instruct the jury on lesser included offenses and by precluding him from arguing his theory of the case. We affirm.
Shortly before 2 a.m. on November 15, 2009, Moses Puga and two others went to the Sehome Haggen grocery store. Haggen employee Andrew Thompson, observed them walking out with an unpurchased 24-pack of Corona. While he waited for other employees to respond to his emergency call, Thompson went to the door. He saw two individuals standing 40 to 50 feet away behind the store's drive-thru pick up area. He also saw two individuals further away, running with the beer. The distance between the carport and the two individuals running was somewhere between 40 feet and 100 feet. One of the two at the carport was later identified as Puga. A witness testified that when Haggen employees came outside, Puga separated from the group that was running and stayed in the area of the drive-thru.
Rory Sprague, another employee, came running out several seconds after Thompson. Thompson pointed toward the two individuals with the beer, and Sprague pursued. Sprague and two witnesses testified that as Sprague approached Puga, Puga swung an empty bottle at him that slipped out of his hand and broke on the ground. After Puga swung the bottle, Thompson ran inside to call the police. Sprague and two witnesses testified that Puga immediately started punching Sprague. He hit Sprague on the forehead, the bridge of the nose, and under his eye. After two others joined Sprague, Puga was wrestled to the ground. The police arrived and detained Puga.
The State charged Puga with robbery in the first degree. At trial, Puga testified that when he saw Sprague running toward him, he threw a bottle of beer he was holding and bent to pick up a cigarette he had dropped. He claimed that as he stood up Sprague was coming at him and started hitting him. He hit back before being wrestled to the ground. He testified that he was trying to get away when the scuffle happened.
The jury found Puga guilty as charged. Puga appeals.
All essential elements of an alleged crime, whether statutory or nonstatutory, must be included in the charging document in order to afford the accused notice of the nature of the allegations so that a defense can be properly prepared. State v. Kjorsvik, 117 Wn.2d 93, 101-02, 812 P.2d 86 (1991). If, as here, the sufficiency of a charging document is not challenged until after the verdict, the charging document will be more liberally construed in favor of validity. Id. at 102. Courts consider (1) whether the necessary elements appear in any form, or can be found by fair construction, in the charging document; and, if so, (2) whether the defendant nonetheless suffered actual prejudice as a result of the inartful, vague, or ambiguous charging language. Id. at 105-06. When applying this test to nonstatutory elements, it is not fatal to an information that the exact words of the case law element are not used; rather the question is whether all the words used would reasonably apprise an accused of the elements of the crime charged. Id. at 109.
The statutory elements of robbery are: (1) a taking of personal property; (2) from the person or in one's presence; (3) by the use or threatened use of such force, or violence, or fear of injury; (4) such force or fear being used to obtain or retain the property, or overcome resistance to the taking. RCW 9A.56.190; State v. Phillips, 98 Wn.App. 936 943, 991 P.2d 1195 (2000). The first degree robbery statute, under the alternative relevant to this case, adds: a person is guilty of robbery in the first degree if, in the commission of a robbery or of immediate flight therefrom, he or she inflicts bodily injury. RCW 9A.56.200. Robbery also includes the nonstatutory element that the property taken belonged to someone other than the defendant. See State v. Graham, 64 Wn.App. 305, 308, 824 P.2d 502 (1992).
Puga contends that the information is fatally defective because it failed to allege a nonstatutory element of the offense of robbery, i.e., that the victim had ownership or dominion and control over the property taken. We disagree.
We addressed a similar issue in Graham. In that case, one appellant's information alleged in pertinent part:
"That the respondent . . . did unlawfully take personal property, to-wit: a leather jacket, from the person and in the presence of Mark Leen, against his will, by the use or threatened use of immediate force, violence and fear of injury to such person or his property."
Graham, 64 Wn.App. at 307 (alteration in original). Under the first prong of Kjorsvik's liberal construction test, the information sufficiently alleged this element. Graham, 64 Wn.App. at 308. An allegation that the defendant "unlawfully" took personal property implies that the defendant had no legal claim to the property, and that ownership was in some person other than the defendant. Id. Also, that the property was taken "from the person" of the victim indicates that the victim had actual possession of, and thus dominion and control over, the property taken. Id. The ownership element of robbery is satisfied if the information alleges that the victim had actual physical possession of the property taken. Id.
As in Graham, a liberal and fair construction of the language in the information shows Puga was reasonably apprised of the allegation that the property he took belonged to someone other than himself.[1]
Puga next faults the information for failing to identify the victim by name. He is incorrect. Informations alleging crimes that involve an act against another person, as opposed to a specific person, do not need to state the name of the victim. City of Seattle v. Termain, 124 Wn.App. 798, 805, 103 P.3d 209 (2004). For example, the identity of the owner of the property taken is not required for charges of possession of stolen property, larceny, or theft. State v. McReynolds, 117 Wn.App. 309, 335-36, 71 P.3d 663 (2003) (); State v. Easton, 69 Wn.2d 965, 967-69, 422 P.2d 7 (1966) (larceny); State v. Greathouse, 113 Wn.App. 889, 904-05, 56 P.3d 569 (2002) (). It is also not necessary to name the victim of an assault. See State v. Winings, 126 Wn.App. 75, 85-86, 107 P.3d 141 (2005) (information charging second degree assault with deadly weapon); State v. Plano, 67 Wn.App. 674, 679-80, 838 P.2d 1145 (1992) (). Likewise, robbery involves an act against another person, not a specific person. Puga's information was not defective for failing to name the victim.
Puga also argues the State needed to identify the property taken. But State v. Tresenriter, 101 Wn.App. 486, 494-95, 4 P.3d 145, 14 P.3d 788 (2000), established that this is not the case. In Tresenriter, the information alleged possession of stolen property. Id. at 494. It did not state what the property was, where it was located, or its connection to the defendant's charges. Id. The information was constitutionally sufficient because the omitted information did not constitute elements of the charged crime. Id. at 495. The remedy for the lack of specificity was to request a bill of particulars. Id. Similarly, here, Puga could have sought a bill of particulars if there was any doubt as to what property he was charged with taking.
Puga claims that the information lacked sufficient factual support. He cites to Termain. But Termain's holding is not applicable here. Termain was charged with violation of a domestic violence no-contact order. Termain, 124 Wn.App. at 800. That is a crime against a particular person. A different standard applies. Id. at 805.
Finding that the information contained all the essential elements, we normally next proceed to the second prong of the Kjorsvik test to ask whether vague or inartful language actually prejudiced the defendant. Kjorsvik, 117 Wn.2d at 106. But, Puga has not argued that he was actually prejudiced. Nor did he, below, avail himself of a bill of particulars, the proper mechanism for obtaining additional information. See State v Eaton, 164 Wn.2d 461, 470 n.6, 191 P.3d 1270 (2008) (J.M. Johnson, J., concurring); State v. Davis, 60 Wn.App. 813, 821, 808 P.2d 167 (1991), aff'd, 119 Wn.2d 657, 835 P.2d 1039 (1993). He cannot establish prejudice as a result of his failure to do so. Holt, 104 Wn.2d at 320. Accordingly, we hold that the information sufficiently apprised Puga of the charged offense so as to allow him to prepare a...
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