State v. Thomas, No. 56540-1-I (Wash. App. 4/16/2007)

• Decision Date: 16 April 2007
• Docket Number: Consolidated with No. 57285-7-I,No. 56540-1-I,56540-1-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. DEMICKO B. THOMAS, Appellant.

Page 1

Unpublished Opinion

STATE OF WASHINGTON, Respondent, v. DEMICKO B. THOMAS, Appellant.

No. 56540-1-I

Consolidated with No. 57285-7-I

The Court of Appeals of Washington, Division One.

Filed: April 16, 2007

Appeal from King County Superior Court. Docket No. 03-1-00029-5. Judgment or order under review. Date filed: 06/10/2005. Judge signing: Honorable Richard F Mcdermott.

Counsel for Appellant(s), Washington Appellate Project Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA, 98101.

Jason Brett Saunders, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.

Nancy P Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.

Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104.

Randi J Austell, Attorney at Law, King Co Pros Attorney, 516 3rd Ave Ste 5th, Seattle, WA, 98104-2385.

APPELWICK, C.J.

Demicko Thomas robbed two jewelry stores. During each robbery, he bound his victims and threatened them with a firearm. A jury convicted him of one count of attempted first degree robbery, three counts of first degree kidnapping, one count each of first degree assault, first degree robbery, and unlawful possession of a firearm. Six of the charges carried a firearm enhancement. Thomas was sentenced to 800 months incarceration. We affirm Thomas' conviction and sentence, reversing only on the incorrect calculation of his firearm enhancements as conceded by the State.¹

FACTS

On September 21, 2002, Thomas entered the Hohner jewelry store holding brochures that he had been given when he visited the store the day before. After some discussion, Thomas pointed a gun at Chuck Hohner, store owner, and brought Hohner around his bench area. He forced Hohner to lie on the ground, bound him with zip ties and ordered him to quit squirming or he would kill him. Thomas then put on gloves and began taking jewelry. Hohner, knowing that the zip ties were breakable, broke free. As Hohner reached for a gun that was hidden from view, Thomas fired shots at him. Hohner returned fire, but neither he nor Thomas were injured. Thomas fled, leaving behind the bag of jewelry and the brochures which contained a fingerprint.

On December 28, 2002, Thomas entered the Farrell jewelry store on the pretense that he was looking for an engagement ring before being deployed from Fort Lewis. He was in full army fatigues, and did not take his gloves off to try on a ring. As Nancy Farrell began filling out a sales slip for Thomas' selection, she looked up to find Thomas pointing a gun at her face. Thomas held both Farrell and Kursnikhi, an employee, at gunpoint, and ordered them into the back room and onto the floor. There, he handcuffed them together at their hands and at their ankles. He told them to be quiet because he did not want to have to hurt them. He fled with cash and jewelry. Farrell and Kursnikhi, still handcuffed to each other, made their way to the panic button and a telephone to call 9-1-1. Firefighters needed to use special bolt cutters to free the women.

Police retrieved a surveillance video from a nearby 7-Eleven store from which Thomas had called Farrell's jewelry store just before the robbery. Still photos from this tape were shown separately to Farrell and Kurnskhi, who each positively identified Thomas. Hohner saw these photos on the news, and identified the man in the photos as the same man who had robbed his store. Thomas was convicted of all charges after a jury trial. He was sentenced to 800 months incarceration.

ANALYSIS

Conceded Sentencing Error

Thomas correctly points out that because attempted robbery is a class B felony he should have only received a 36-month firearm enhancement on that charge, rather than the 60-month firearm enhancement imposed on class A felonies. Because the State concedes this point, we remand this matter for resentencing, and correction of the final, maximum term in section 2.4 of the Judgment and Sentence.

Sufficiency of the Evidence to Prove That Thomas Was Armed With a Firearm

A firearm enhancement is imposed if the offender or an accomplice was armed with a firearm as defined in RCW 9.41.010. RCW 9.94A.533. "Firearm" means a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder. RCW 9.41.010(1). Thomas argues that the evidence is not sufficient to show that the gun he carried while robbing the Farrell store was capable of firing an explosive.

"The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "Circumstantial evidence is as probative as direct evidence." State v. Vermillion, 66 Wn. App. 332, 342, 832 P.2d 95 (1992), (citation omitted). We defer to the trier of fact to resolve any conflicts in testimony, to weigh the persuasiveness of evidence, and to assess the credibility of the witnesses. State v. Boot, 89 Wn. App. 780, 791, 950 P.2d 964 (1998).

In construing the firearm enhancement statute, Division Two of this Court held that the definition of firearm "did not limit firearms to only those guns capable of being fired during the commission of the crime. Rather, the court [in Tongate] characterized a firearm as a gun in fact, not a toy gun; and the real gun need not be loaded or even capable of being fired to be a firearm." State v. Faust, 93 Wn. App. 373, 380, 967 P.2d 1284 (1998) (holding that the firearm enhancement still applied even when the gun was mechanically inoperable) (citing State v. Tongate, 93 Wn.2d 751, 613 P.2d 121 (1980)).

The Faust court also pointed out that "eyewitness testimony to a real gun that is neither discharged nor recovered is sufficient to support deadly weapons and/or firearms penalty enhancements." Faust, 93 Wn. App. at 380 (citing State v. Bowman, 36 Wn. App. 798, 803-04, 678 P.2d 1273 (1984). The State need not introduce the actual weapon at trial. Bowman, 36 Wn. App. at 803. "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." Id. (quoting State v. Tongate, 93 Wn.2d 751, 754, 613 P.2d 121 (1980)). In Bowman, the witness 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. Bowman, 36 Wn. App. at 798. Here, both Farrell and Kursnikhi provided eyewitness testimony that Thomas held a real gun to Farrell's face. When asked during her 9-1-1 call whether she had seen a weapon, Farrell replied, "Yes. Yes. He had a gun." During her testimony, Farrell described the gun as "a large hand held gun, it was silver, aluminum silver color. The barrel of the gun was about that big, from what I remember, and had a very dark tunnel-looking hole in the middle." When asked how the gun felt when Thomas shoved it into Farrell's side, Farrell replied, "Oh, it felt very heavy, very strong." Farrell drew a picture of the gun.

Kursnikhi testified that she had never seen a real gun in her life. She said that when Thomas pulled the gun on Farrell, she "realized [they were] really in trouble," because Farrell's face turned "white as paper." She described the gun as "beautiful," "white or grayish, kind of metal, shiny and flat," with a "little bit of a line going sideways." While Thomas never pointed the gun at her, his statement "I don't want to hurt you" indicated that he was capable of hurting them with the weapon he held.

The testimony from all victims is sufficient, viewed in the light most favorable to the State, for a trier of fact to find beyond a reasonable doubt that Thomas carried a real gun. We defer to the jury's assessment of the persuasiveness of the evidence and witness credibility. Whether the gun was operable does not matter. Faust, 93 Wn. App. at 380. The evidence is sufficient to support the jury's findings on the firearm enhancements for the first degree robbery charge and two counts of first degree kidnapping.

Firearm Enhancements and Double Jeopardy

"Washington courts have repeatedly rejected arguments that weapon enhancements violate double jeopardy." State v. Huested, 118 Wn App. 92, 95, 74 P.3d 672 (2003) (citing State v. Claborn, 95 Wn.2d 629, 636-38, 628 P.2d 467 (1981)); see also, State v. Nguyen, 134 Wn. App. 863, 868, 142 P.3d 1117 (2006) review pending 2007 Wash. LEXIS 102 (Wash. Jan. 30, 2007). The "statute unambiguously shows legislative intent to impose two enhancements based on a single act of possessing a weapon, where there are two offenses eligible for an enhancement." Huested, 118 Wn. App. at 95 (evaluating the deadly weapon enhancement section of Chapter 9.94A RCW, which contains the same language as the firearm enhancement section). However, Thomas urges a double jeopardy "same elements" analysis in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

We recently addressed and rejected this argument in Nguyen, 134 Wn. App. at 869, 871 (finding that "nothing in Blakely gives reason to question prior Washington cases holding that double jeopardy is not violated by weapon enhancements even if the use of the weapon is an element of the crime."). Nguyen at 869. Like Nguyen, Thomas was convicted of several counts of first degree crimes that required the use of a firearm. Like Nguyen, the jury found Thomas armed with a firearm on each count and the sentencing court imposed consecutive firearm enhancements. Since Thomas' case and arguments are indistinguishable, we adhere to our conclusion in Nguyen; any legislative redundancy in mandating enhanced sentences for offenses involving the use of a firearm is intentional and does not violate double...