State v. Truong

• Citation: 277 P.3d 74,168 Wash.App. 529
• Decision Date: 29 May 2012
• Docket Number: No. 67151–1–I.,67151–1–I.
• Court: Court of Appeals of Washington
• Parties: STATE of Washington, Respondent, v. Sindy J. TRUONG, Appellant.

168 Wash.App. 529

277 P.3d 74

STATE of Washington, Respondent,

v.Sindy J. TRUONG, Appellant.

No. 67151–1–I.

Court of Appeals of Washington, Division 1.

May 29, 2012.

Erin Lindsay Calkins, Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.

Bridgette Eileen Maryman, King County Prosecutor's Office, Seattle, WA, for Respondent.

LAU, J.

¶ 1 Under our transactional analysis jurisprudence, an accused's use of force after the original taking to retain the personal property satisfies the force element of robbery. Because Sindy Truong used force to overcome resistance to the taking and unchallenged findings support the conclusions of law, we affirm her juvenile convictions of first and second degree robbery involving two different victims.

FACTS

¶ 2 The unchallenged findings of fact show the following: On the evening of November 19, 2010, Jason Decoste and Jessica Redmon–Beckstead were riding a bus home from a doctor appointment. The couple sat in the back of the bus, listening to Redmon–Beckstead's Zune MP3 player (audio file format) with a shared set of headphones. Decoste held the Zune in his hand.

¶ 3 A group of female juveniles—including Sindy Truong, Sha'raun Hill, Decontee Wea, Nyajouk Reath, and an unidentified adult female—boarded the bus in downtown Seattle.¹ Redmon–Beckstead did not know anyone in the group. Decoste remembered Hill from a party he attended a year earlier. Hill walked past Redmon–Beckstead and sat down. She then repeatedly accused Decoste of taking her phone. As Hill continued to shout at Decoste about the phone, Truong walked toward Hill, past Redmon–Beckstead and Decoste, and grabbed the Zune from his lap, detaching it from the headphones.² Truong quickly passed the Zune to Wea.

¶ 4 Redmon–Beckstead immediately stood, confronted the girls, and demanded the Zune back. They refused to return it. Wea then sat in Redmon–Beckstead's seat next to Decoste and Hill sat on Decoste's lap. Seeing Wea try to take her headphones from Decoste, Redmon–Beckstead moved to face Wea, Hill, and Decoste. Redmon–Beckstead took the headphones from Decoste and struggled with Wea over them. Wea pulled the headphones away and threw a punch at Redmon–Beckstead. Truong immediately joined in punching Redmon–Beckstead. When Decoste stood up to protect Redmon–Beckstead, Hill and Wea punched him. Hill twice punched the back of Decoste's head with a closed fist.

¶ 5 Hill then moved to stand in front of Decoste. She continued to demand a phone from him while Wea grabbed an overhead bar and kicked Decoste's head several times. Hill confronted Redmon–Beckstead and Decoste about the phone while Truong, Wea, and Reath searched Decoste's pockets.³ Decoste pushed their hands away, but Wea removed a pack of cigarettes from his right pocket as Hill watched.

¶ 6 Hill continued to argue with Redmon–Beckstead and Decoste about the phone while Truong, Wea, and the unidentified adult female punched Redmon–Beckstead and Decoste.⁴ Decoste and other passengers yelled for the driver to stop the bus. Hill told a passenger that it was not necessary to stop the bus. Truong and Wea searched Redmon–Beckstead's pockets while Wea again grabbed an overhead bar and kicked Redmon–Beckstead's head several times. Wea also kicked Decoste when he intervened.

¶ 7 The bus finally stopped and the rear door opened, allowing Redmon–Beckstead and Decoste to exit. The group of five shouted at the driver to start driving. When he declined, they exited and left the area. Redmon–Beckstead received six stitches above her eye at the hospital.

¶ 8 The State charged Truong with two counts of first degree robbery—one for Redmon–Beckstead's Zune and headphones and one for Decoste's cigarettes. Based on an agreed motion from the State and Truong, the court waived application of exclusive adult jurisdiction and remanded the case to King County Juvenile Court. After a bench trial, the court found Truong guilty of first degree robbery of Redmon–Beckstead. The court acquitted Truong of first degree robbery of Decoste, but found her guilty of the lesser offense of second degree robbery. Truong appeals both counts, arguing insufficient evidence to support the convictions.

ANALYSIS

Standard of Review

¶ 9 Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Montgomery, 163 Wash.2d 577, 586, 183 P.3d 267 (2008). “A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.” State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). We consider direct and circumstantial evidence equally reliable in weighing sufficiency of the evidence. City of Seattle v. Meah, 165 Wash.App. 453, 456, 267 P.3d 536 (2011). We defer to the trier of fact on issues of conflicting testimony, witness credibility, and the persuasiveness of the evidence. State v. Thomas, 150 Wash.2d 821, 874–75, 83 P.3d 970 (2004). Given the fact finder's opportunity to assess witness demeanor and credibility, we will not disturb those findings. See State v. Pierce, 134 Wash.App. 763, 774, 142 P.3d 610 (2006).

Sufficiency of the Evidence

¶ 10 Because Truong assigns no error to the court's findings of fact except finding 11, they are verities on appeal. State v. O'Neill, 148 Wash.2d 564, 571, 62 P.3d 489 (2003). As to finding 11, substantial evidence supports this finding. Finding 11 states:

As [Decoste] and other passengers yelled for the bus driver to stop, Truong and Wea again began going through [Redmon–Beckstead's] pockets. Wea then again grabbed the overhead bar, and proceeded to kick [Redmon–Beckstead] several times in the head. When [Decoste] interposed himself between [Redmon–Beckstead] and Wea, he also got kicked.

Both the metro surveillance videotape and Redmon–Beckstead's testimony amply establish that Wea went through her pockets after the bus stopped. After several seconds, Truong also went through Redmon–Beckstead's pockets. The entire incident was recorded by a metro surveillance camera, and the videotape—including the audio portion—was admitted at trial.⁵ Thus, the main issue here is the effect of force used after a taking is legally complete under our transactional analysis jurisprudence.

First Degree Robbery

¶ 11 Truong argues that insufficient evidence supports her first degree robbery conviction because (1) no evidence supports the force element since she passed the Zune to Wea before using any force against Redmon–Beckstead and (2) no evidence shows that she took or touched the headphones. The State counters that under State v. Handburgh, 119 Wash.2d 284, 830 P.2d 641 (1992), sufficient evidence supports Truong's conviction as a principal or accomplice to first degree robbery.

¶ 12 A person is guilty of robbery when she unlawfully takes personal property from the person of another, or in his presence, against his will by the use, or threatened use, of force, violence, or fear of injury. RCW 9A.56.190. “Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking.” RCW 9A.56.190. “Any force or threat, no matter how slight, which induces an owner to part with his property, is sufficient to sustain a robbery conviction.” Handburgh, 119 Wash.2d at 293, 830 P.2d 641;see also State v. Parra, 96 Wash.App. 95, 101–02, 977 P.2d 1272 (1999). If the person inflicts bodily injury in committing the crime, she is guilty of first degree robbery. RCW 9A.56.200(1)(a)(iii).

¶ 13 We have adopted a “transactional” analysis of robbery, whereby the force or threat of force need not precisely coincide with the taking. State v. Manchester, 57 Wash.App. 765, 770, 790 P.2d 217 (1990). The taking is ongoing until the assailant has effected an escape. Manchester, 57 Wash.App. at 770, 790 P.2d 217. The definition of robbery thus includes “violence during flight immediately following the taking.” Manchester, 57 Wash.App. at 770, 790 P.2d 217;see also State v. Robinson, 73 Wash.App. 851, 856, 872 P.2d 43 (1994) (“Pursuant to [the transactional view of robbery], a robbery can be considered an ongoing offense so that, regardless of whether force was used to obtain property, force used to retain the stolen property or to effect an escape can satisfy the force element of robbery.”). Citing Manchester, our Supreme Court endorsed the transactional analysis in Handburgh. The Handburgh court noted, “Implicit in the Manchester holding is the assumption a taking can be ongoing or continuing so that the later use of force to retain the property taken renders the actions a robbery.” Handburgh, 119 Wash.2d at 290, 830 P.2d 641. The court concluded:

The plain language of the robbery statute says the force used may be either to obtain or retain possession of the property. We hold the force necessary to support a robbery conviction need not be used in the initial acquisition of the property. Rather, the retention, via force against the property owner, of property initially taken peaceably or outside the presence of the property owner, is robbery.

Handburgh, 119 Wash.2d at 293, 830 P.2d 641.

¶ 14 Truong relies on State v. Johnson, 155 Wash.2d 609, 121 P.3d 91 (2005), to argue that “in order to retain property through force, an individual must have actual or constructive possession of the property. [Truong] gave up possession of the Zune within two seconds of taking it, and so could not have used force to have retained possession of the property.” Appellant's Br. at 14 (citation omitted). In Johnson, the defendant walked into a store, loaded a television into a shopping cart, and pushed the cart out the front door. Johnson, 155 Wash.2d at 610, 121 P.3d 91. Two security guards followed him into the parking lot and confronted him. Johnson, 155 Wash.2d at 610, 121 P.3d 91. Johnson abandoned the shopping cart and turned...