State v. Workman

Decision Date07 September 1978
Docket NumberNo. 44765,44765
Citation90 Wn.2d 443,584 P.2d 382
PartiesSTATE of Washington, Appellant, v. Lawrence D. WORKMAN, Respondent. STATE of Washington, Appellant, v. Steven L. HUGHES, Respondent.
CourtWashington Supreme Court

Gerald A. Horne, Asst. Public Defender, Spokane, for appellant in State v. Hughes.

Donald C. Brockett, Spokane County Pros. Atty., Gregory G. Staeheli, Deputy Pros. Atty., Spokane, for appellant in State v. Workman.

Donald C. Brockett, Spokane County Pros. Atty., Gregory G. Staeheli, Deputy Pros. Atty., Spokane, for Hughes.

Roger K. Gigler, Spokane County Public Defender, Spokane, for Workman.

HOROWITZ, Justice.

This consolidated appeal results from orders entered in two cases granting new trials following jury verdicts of guilty. The crime charged in each case, attempted robbery in the first degree while armed with a deadly weapon which was also a firearm, involves sections of both Ch. 9 RCW Crimes and Punishments, and the newer Ch. 9A, entitled Washington Criminal Code. 1

Defendants Lawrence Dean Workman and Steven Lynn Hughes were convicted of attempted first degree robbery while armed with a deadly weapon which was also a firearm. The judges at their separate trials ordered new trials on several grounds. The State appeals from these orders. Since the cases stem from the same events and present related issues, they were consolidated on this appeal. The issues presented are (1) whether the crime of unlawfully carrying a weapon is an included offense of attempted first degree robbery, (2) whether the defendants were entitled to an instruction on the defense of abandonment of the attempt, (3) whether the enhanced penalty of the Uniform Firearms Act applies to the crime charged here, and (4) whether the application of the Firearms Act and RCW 9.95 regarding parole restrictions deny defendants equal protection. We modify and affirm the orders granting new trials for the reasons stated below.

Defendants Workman and Hughes spent the evening of July 22, 1976 drinking and dancing with their wives in State Line, Idaho. On the way home to Moses Lake, Washington after the taverns closed, the defendants decided to commit a robbery. Taking the freeway exit for Spokane, they spotted the Fill-em' Fast Gas Station and chose it as their target. They parked their car in an alley behind the station. Leaving their wives asleep, they took a .22 caliber rifle from the trunk of the car and loaded it. They also took a gunny sack with holes punched in it for eyeholes, and a stocking cap, both intended for use as masks. Then they walked up the alley to a fence behind the station and waited. This was normally a busy time at the station. After about 15 minutes they moved to a hiding place just behind the pay booth, where they waited again.

At about 2:30 a. m. when business at the station was slack, the attendant took a short walk to get some fresh air and saw the defendants, unmasked, behind the pay booth. He returned to the booth and called the police. Defendant Workman later appeared at the window without a mask or gun and asked for a cigarette and match. The attendant refused, and Workman rejoined defendant Hughes. During this period, according to defendants' testimony, they were trying to summon the "courage" to commit the robbery and decide how to do it.

Sometime after the cigarette episode an unmarked police car took up a position across the street from the station. The police officer could see both the defendants and a second police car which had turned into the alley behind the station. The first car then pulled into the station.

At that time the defendants, having decided not to go through with their plans, started walking away from the station. They testified at their trials that they had not seen the police before they decided to leave. They were stopped and arrested in the alley behind the station. Defendant Hughes was found to have the sawed-off rifle concealed under his clothes.

The defendants were each charged with attempted first degree robbery while armed with a deadly weapon within the meaning of RCW 9.95.040, which was also a firearm within the meaning of RCW 9.41.025 of the Uniform Firearms Act. At their separate trials, each defendant was found guilty, and the juries returned special verdicts finding they had been armed with a deadly weapon which was a firearm. The judges then entered orders granting new trials, and the judge in the Hughes cases vacated the special findings on the grounds, in part, that invocation of the two special statutes mentioned above was unconstitutional.

I. THE INCLUDED OFFENSE.

The Court in State v. Hughes found defendant Hughes' proposed instruction on the offense of unlawfully carrying a weapon under RCW 9.41.270 should have been given. Failure to give an instruction on this offense was one of the grounds on which a new trial was granted. We agree that the crime defined by RCW 9.41.270 is an included offense of attempted first degree robbery under the facts of this case. Where the evidence supports it, an instruction on an included offense should be given. We hold it was error to fail to give the proposed instruction.

Under RCW 9.41.270, it is unlawful to carry any weapon (including a firearm) in a manner, or under circumstances, which warrants alarm for the safety of others. The crime is a gross misdemeanor. The elements of the crime in the context of this case are the carrying of a firearm and the circumstances warranting alarm for the safety of others.

Under the Washington rule, a defendant is entitled to an instruction on a lesser included offense if two conditions are met. First, each of the elements of the lesser offense must be a necessary element of the offense charged. State v. Bowen, 12 Wash.App. 604, 531 P.2d 837 (1975). See RCW 10.61.006. See also C. Torcia, 2 Wharton's Criminal Procedure § 375 at p. 337 (12th Ed. 1975). Second, the evidence in the case must support an inference that the lesser crime was committed. State v. Snider, 70 Wash.2d 326, 422 P.2d 816 (1967).

The crime charged in this case is attempted robbery in the first degree. The elements of robbery in the first degree are that the defendant be armed with a deadly weapon (defined in RCW 9A.04.110 as including any firearm) in the commission of a robbery. RCW 9A.56.200.

It is clear that the element of carrying a weapon under RCW 9.41.270, the gross misdemeanor, is a necessary element of the greater crime of first degree robbery. Likewise, the element of circumstances warranting alarm under the lesser offense is an inherent characteristic of an attempt to commit a robbery. The existence of such circumstances therefore qualifies as a necessary element of the greater offense of attempted first degree robbery. The first condition of the test for an included offense is thus met here.

The second condition, that the evidence must support an inference that the included crime was committed, is also met. The evidence in this case clearly supports an inference that defendant Hughes was carrying a firearm in a manner warranting alarm for the safety of others. There was also evidence that defendant Workman handled the gun. Unlike the cases cited by the State, this is not a case where finding the elements of the lesser offense is precluded by the evidence at trial. See, for example, State v. Snider, supra. Furthermore, while the State contends the facts do not support a finding of the elements of the lesser crime because the station attendant never saw the gun, it is not necessary in order to prove the crime that the attendant have seen it. The statute only requires that the circumstances Warrant alarm for the safety of others. They need not actively Cause such alarm. Surely the circumstances of two men who were armed with a rifle and intending to commit a robbery warrant alarm for the safety of anyone who may chance to be nearby. We therefore conclude the facts here were clearly sufficient to send the issues raised by the lesser crime to the jury.

II. THE DEFENSE OF ABANDONMENT.

Both orders granting a new trial were based in part on the belief of the trial judge that the defendant was entitled to an instruction on the defense of abandonment. At trial defendants tried to show they abandoned their plan before the crime of attempt was committed. They proposed an instruction on abandonment derived essentially from a New York statute which sets up abandonment of criminal purpose as an affirmative defense to the crime of attempt. The trial courts both rejected the proposed instruction and gave an instruction properly based on our attempt statute, RCW 9A.28.020.

The instruction given correctly stated that a person is guilty of attempt if, with intent to commit a specific crime, he does any act which is a substantial step toward the commission of the crime. The instruction qualified the meaning of a "substantial step" by stating that the conduct must be more than mere preparation. It was proper to use language from the statute in the instruction. State v. Hardwick, 74 Wash.2d 828, 447 P.2d 80 (1968).

Defendants contend, however, that the statutory language, "substantial step," is unconstitutionally vague unless further defined, that an instruction on abandonment is necessary in order to properly define it, and that without the requested instruction they were precluded from arguing their theory of the case to the jury.

We must disagree. The question of what constitutes a "substantial step" under the particular facts of the case is clearly for the trier of fact. The instruction given informed the jury that mere preparation would not be sufficient, that something more must be present in order to constitute a substantial step. When preparation ends and an attempt begins, we have held, always depends on the facts of the particular case. State v. Nicholson, 77 Wash.2d 415, 463 P.2d 633 (1969). We cannot agree that the instruction given was unconstitutionally vague.

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