State v. Tvedt, 73944-7.

Citation107 P.3d 728,153 Wash.2d 705
Decision Date03 March 2005
Docket NumberNo. 73944-7.,73944-7.
PartiesSTATE of Washington, Respondent, v. Ronald A. TVEDT, Petitioner.
CourtUnited States State Supreme Court of Washington

Pattie Mhoon, Tacoma, for Petitioner.

Kathleen Proctor, Pierce County Pros. Atty. Office, Tacoma, for Respondent.

MADSEN, J.

¶ 1 Petitioner Ronald Tvedt contends that his convictions on four counts of first degree robbery violate the state and federal constitutional proscriptions against double jeopardy. This challenge requires this court to decide what constitutes the unit of prosecution for robbery. We conclude that the unit of prosecution for robbery is each taking of personal property from a person or from his or her presence against the person's will through the use or threat of force, violence, or injury to a person or property, regardless of the number of items taken. A single taking can result in a conviction on one count of robbery, regardless of the number of persons present. Applying this definition of the unit of prosecution, Tvedt was properly convicted on four counts of robbery. Accordingly, we affirm the Court of Appeals' decision upholding the convictions, although our analysis differs significantly.

FACTS

¶ 2 Tvedt was charged with 12 counts of first degree robbery as a result of events occurring in September 2000. He pleaded guilty to counts I-VII and count XII. As to the remaining counts, counts VIII through XI, Tvedt "stipulate [ed] to facts sufficient for a finding of guilty." Clerk's Papers at 24. He contends that his double jeopardy rights were violated by his convictions on these counts.

¶ 3 According to the stipulated facts, on the morning of September 23, 2000, Tvedt entered an Exxon service station in Pierce County where two people were present, owner Monty Younce and cashier Addie Schaefer. Schaefer was behind the counter and Younce was in the office. After Tvedt selected and brought an item to the counter, he quickly went behind the counter, pushed a knife blade into Schaefer's stomach, and then pushed her into the office. He forced Younce and Schaefer to lie face down on the floor. While brandishing the knife, Tvedt demanded money. Younce told Tvedt the only money on hand was in a deposit bag, which Tvedt stole. Tvedt then ordered Younce to give him the keys to Younce's truck, which Younce did. Tvedt left the station in the truck. The truck was later found abandoned nearby.

¶ 4 On the morning of September 25, 2000, Tvedt walked into a Texaco service station in Pierce County where store manager Jack Shepherd and assistant manager Teresa Piper were behind the counter. Shepherd was removing money from the safe. After selecting some food items, Tvedt suddenly drew a knife, went behind the counter, and stuck the knife into Shepherd's left side. He prodded Shepherd and Piper toward the back storage area, forced them to lie on the floor, and demanded the weekend receipts. After Piper told Tvedt the money was in a paper bag next to the safe, Tvedt stole the money and also stole Shepherd's cellular telephone. He then left the service station.

¶ 5 The State charged Tvedt with four counts of first degree armed robbery based on these events. In relevant part, count VIII charged Tvedt with taking the cash from or from the presence of Younce and Schaefer. Count IX charged Tvedt with robbery based on taking Younce's truck. Count X charged Tvedt with taking cash from or from the presence of Shepherd and Piper. Count XI charged Tvedt with robbery based on taking Shepherd's cellular telephone.

¶ 6 The trial court found Tvedt guilty on all four counts. At the sentencing hearing, Tvedt agreed that the State properly charged him with four counts of robbery but argued that only two deadly weapons enhancements were proper. The court rejected this argument, ruling that the State properly sought four weapons enhancements in connection with the Exxon and Texaco robberies.

¶ 7 Tvedt appealed, arguing for the first time that the four convictions on counts VIII-XI violated the double jeopardy prohibition.1 The Court of Appeals affirmed the convictions in a split decision. State v. Tvedt, 116 Wash.App. 316, 65 P.3d 682 (2003). We granted discretionary review.

ANALYSIS

¶ 8 Tvedt claims that he should be convicted on only one count of robbery for his acts at each service station because he engaged in only one course of conduct at each. The State maintains that a conviction on one count of robbery is proper for each person whose will is overcome by the use or threatened use of force, i.e., each person placed in fear and from whom or from whose presence property is taken. Neither position reflects the legislature's definition of robbery.

¶ 9 The double jeopardy clause of the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. 5. The Washington State Constitution provides that "[n]o person shall be ... twice put in jeopardy for the same offense." Const. art. I, § 9. The two clauses provide the same protection. In re Pers. Restraint of Davis, 142 Wash.2d 165, 171, 12 P.3d 603 (2000).

¶ 10 "Double jeopardy principles protect a defendant from being convicted more than once under the same statute if the defendant commits only one unit of the crime." State v. Westling, 145 Wash.2d 607, 610, 40 P.3d 669 (2002) (citing State v. Adel, 136 Wash.2d 629, 634, 965 P.2d 1072 (1998)). Accordingly, in order to resolve whether double jeopardy principles are violated when a defendant is convicted of multiple violations of the same statute, a court must determine what "unit of prosecution" the legislature intends to be the punishable act under the statute. Westling, 145 Wash.2d at 610,40 P.3d 669; In re Pers. Restraint of Davis, 142 Wash.2d at 172, 12 P.3d 603; State v. Tili, 139 Wash.2d 107, 113, 985 P.2d 365 (1999); Adel, 136 Wash.2d at 634,965 P.2d 1072. The unit of prosecution for a crime may be an act or a course of conduct. United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 225-26, 73 S.Ct. 227, 97 L.Ed. 260 (1952); State v. Root, 141 Wash.2d 701, 710, 9 P.3d 214 (2000); Adel, 136 Wash.2d at 634,965 P.2d 1072.

¶ 11 In determining legislative intent as to the unit of prosecution, we first look to the relevant statute. The meaning of a plain, unambiguous statute must be derived from the statutory language. Westling, 145 Wash.2d at 610, 40 P.3d 669; Tili, 139 Wash.2d at 115, 985 P.2d 365. However, "`[w]e are not allowed to look for an intent that reasonably could be imputed to [the legislature], nor are we permitted to construe [an] Act in a way that we believe will best accomplish evident statutory purpose.'" United States v. Keen, 96 F.3d 425, 433 (9th Cir.1996) (quoting Brown v. United States, 623 F.2d 54, 59 (9th Cir.1980)). Rather, as the Supreme Court has held,

when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication.

Universal C.I.T. Credit Corp., 344 U.S. at 221-22, 73 S.Ct. 227. Therefore, if the legislature fails to define the unit of prosecution or its intent is unclear, under the rule of lenity any ambiguity must be "`resolved against turning a single transaction into multiple offenses.'" Adel, 136 Wash.2d at 634, 965 P.2d 1072; (quoting Universal C.I.T. Credit Corp., 344 U.S. at 221-22, 73 S.Ct. 227); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955).

¶ 12 RCW 9A.56.190 provides that "[a] person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone." Under the plain language of the statute, the crime of robbery requires that there be a taking of property and that the taking be forcible and against the will of the person from whom or from whose presence the property is taken. By describing the crime of robbery as it did, the legislature established an offense which is dual in nature — robbery is a property crime and a crime against the person.

¶ 13 There are several indications that the legislature intended that the unit of prosecution include both characteristics. Initially, the language of the statute clearly shows that the legislature was concerned with the offense as a property crime, as noted. Additionally, RCW 9A.56.190 requires a taking that must be accomplished "by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone." (Emphasis added.) The statute does not merely provide that the force must be directed at a person. It also provides that the use or threat of force, violence, or fear of injury may be directed to property.

¶ 14 Moreover, the legislature classified robbery with other property offenses. Laws of 1975, 1st Ex.Sess., ch. 260, at 841, 846 (§ 9A.56.200). Offenses included in the chapter, as codified in 1975, are theft, unlawful issuance of checks, taking motor vehicle without permission, theft of livestock, theft presumed from the failure to return leased items, extortion, possession of stolen property, obscuring the identity of a machine, and robbery. Laws of 1975, 1st Ex.Sess., ch. 260, §§ 9A.56.010-9A.56.210. The legislature classified robbery with property crimes, indicating a focus on the nature of robbery offenses as crimes against property.2

¶ 15 But it is equally apparent that the legislature intended that the unit of prosecution for robbery encompass its character as a crime against the person. The plain language of RCW 9A.56.190 shows that the legislature was concerned with the risks that actual and...

To continue reading

Request your trial
147 cases
  • State v. Ruiz-Pacheco
    • United States
    • Connecticut Supreme Court
    • July 9, 2020
    ...works as a particularized version of the rule of lenity" (emphasis omitted; internal quotation marks omitted)); State v. Tvedt , 153 Wn. 2d 705, 711, 107 P.3d 728 (2005) ("if the legislature fails to define the unit of prosecution or its intent is unclear, under the rule of lenity any ambig......
  • State v. Rowland
    • United States
    • Washington Court of Appeals
    • September 25, 2018
    ... ... of immediate force, violence, or fear of injury." RCW ... 9A.56.190. In addition, the victim "must have an ... ownership, representative, or possessory interest in the ... property" taken. State v. Tvedt , 153 Wn.2d 705, ... 714, 107 P.3d 728 (2005) ... B ... Robinson's Attempted Robbery ... Here, ... sufficient evidence supported that Robinson (1) intended to ... commit robbery and (2) took a substantial step toward ... carrying out ... ...
  • In re Francis
    • United States
    • Washington Supreme Court
    • November 18, 2010
    ...of property jointly held by Lucas and Jacobsen-$2,000 Jacobsen had received from her parents-and under our holding in State v. Tvedt, 153 Wash.2d 705, 107 P.3d 728 (2005), only one count of robbery can be charged for any one piece of property. ¶ 22 In Tvedt we explained double jeopardy prot......
  • State v. Bisson
    • United States
    • Washington Supreme Court
    • March 16, 2006
    ...rule in interpreting ambiguous plea agreements. State v. Wills, 244 Kan. 62, 69, 765 P.2d 1114 (1988); see State v. Tvedt, 153 Wash.2d 705, 711, 107 P.3d 728 (2005) (applying rule of lenity to ambiguous criminal ¶ 25 While we strongly discountenance the State's failure to clarify at the tim......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT