Opinion
No. 28816-8-II
Filed: August 5, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County Docket No: 02-1-00167-8 Judgment or order under review Date filed: 05/17/2002
Counsel for Appellant(s), Michelle Bacon Adams, Attorney at Law, 623 Dwight St, Port Orchard, WA 98366-4619.
Counsel for Respondent(s), Matthew L. Clucas, Kitsap County Prosecutors Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
Daniel J. Shepherd appeals a conviction for robbery in the second degree. We affirm.
On January 29, 2002, at the Kitsap Mall, Shepherd spoke to Joshua Garner about buying or selling some marijuana. The two of them then decided to go `somewhere safe that wasn't around the video cameras or security, out of the mall somewhere[.]' Outside the mall, Shepherd and Garner got into a car driven by David Cook-Young. Cook-Young drove a short distance, pulled into an apartment complex, and stopped. According to Garner, Shepherd then produced a gun and demanded Garner's marijuana and wallet. When Garner surrendered his wallet, Shepherd removed $20 from it, then handed both the wallet and the money to Cook-Young. Cook-Young kept the $20 but returned the wallet to Garner. After Garner got out of the car, Shepherd and Cook-Young drove away.
II Report of Proceedings (II RP) at 15.
The police stopped Cook-Young a short time later. He was alone, having dropped Shepherd at a nearby store. He said that Shepherd had pulled a gun and pointed it `at the white boy's neck[.]' He was arrested at that time, and Shepherd was arrested a short time later.
II RP at 94.
The State charged Shepherd with second degree robbery. Later, it amended the charge to first degree robbery while armed with a firearm, as well as second degree robbery. Cook-Young testified at Shepherd's trial. Shepherd wanted to show that Cook-Young had been charged with second degree robbery and had pled guilty pursuant to a plea agreement that obligated him to cooperate with the State. Shepherd also wanted to show that Cook-Young thought he was facing a sentence of 3 months because of his plea agreement, and that he thought he would be facing a sentence of 8 years, including a firearm enhancement of 5 years, but for his plea agreement. The trial court allowed Shepherd to show what he wanted to, except that it did not allow Shepherd to ask separately about the firearm enhancement. The trial court reasoned:
You may not break it down in terms of firearm enhancement for an additional five years, because that puts directly in front of the jury a five-year sanction if they find [Shepherd] guilty and they make the special finding of firearm enhancement.
II RP at 86.
Through both Cook-Young and an officer who had arrested him, the State offered Cook-Young's statements, made just after he was stopped, about what had occurred in the robbery. Shepherd objected, claiming that the statements were hearsay. The trial court ruled that the statements were `not hearsay because [they were] being offered to rebut the express charge of motive,' and that the statements were admissible under ER 801(d)(1)(ii).
II RP at 103.
At the end of the evidence, Shepherd asked the trial court to instruct on third degree theft as a lesser included offense. Declining, the trial court instructed only on first and second degree robbery. The jury found Shepherd guilty of second degree robbery.
I.
The first issue on appeal is whether the trial court erred by not allowing Shepherd to ask about the firearm enhancement. It did not. It was required to allow Shepherd to show any bias to which Cook-Young might be subject, and it did that by allowing Shepherd to show that Cook-Young believed himself to be facing a sentence of 8 years. The fact that the 8 years included a firearm enhancement added nothing about bias and would have improperly informed the jury about the punishment Shepherd was facing.
See State v. Murphy, 86 Wn. App. 667, 670, 937 P.2d 1173 (1997), review denied, 134 Wn.2d 1002 (1998) (`Washington courts . . . follow the view that punishment is irrelevant to the jury's task.').
II.
The next issue is whether the trial court erred by admitting Cook-Young's prior consistent statements under ER 801(d)(1)(ii). That rule provides that a prior statement is not hearsay if (1) the declarant testifies at trial; (2) the declarant is subject to cross-examination concerning the statement; (3) the statement is consistent with the declarant's trial testimony; and (4) the statement `is offered to rebut an express or implied charge against the declarant of recent fabrication . . .' The last requirement is the one in issue here. It is met if (a) the witness is charged with fabricating, and (b) the witness made the pretrial statement before he or she had any reason to fabricate. To compare a statement made before a reason to fabricate arose with the witness' trial testimony, and to find them consistent, is to rebut a charge of fabrication. Cook-Young made the offered pretrial statements long before his plea bargain. During trial, Shepherd charged that Cook-Young was fabricating because of his plea bargain. The offered statements were consistent with Cook-Young's trial testimony, they tended to rebut the charge of fabrication because of the plea bargain, and they were properly admitted under ER 801(d)(1).
ER 801(d)(1)(ii).
State v. Bargas, 52 Wn. App. 700, 702-03, 763 P.2d 470 (1988), review denied, 112 Wn.2d 1005 (1989); State v. Ellison, 36 Wn. App. 564, 568, 676 P.2d 531, review denied, 101 Wn.2d 1010 (1984); contrast, Tome v. United States, 513 U.S. 150, 158, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995).
See State v. Epton, 10 Wn. App. 373, 518 P.2d 229, review denied, 83 Wn.2d 1011 (1974) (prerules case involving witness rehabilitation).
III.
The next issue is whether the trial court erred by not instructing on third degree theft as a lesser included offense. Such an instruction is required (1) if the elements of third degree theft were also elements of second degree robbery, and (2) if the evidence taken in the light most favorable to the defendant supports an inference that third degree theft was committed instead of second degree robbery. The State concedes that the first prong is met, so only the second prong is in issue. Even when taken in the light most favorable to Shepherd, the evidence does not support an inference that he stole property from Garner without using force. The second prong was not met, and the trial court did not err.
State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000); State v. Bergeson, 64 Wn. App. 366, 369, 824 P.2d 515 (1992).
IV.
The last issue is whether the evidence is sufficient to support a verdict of second degree robbery. Evidence is sufficient if a rational trier of fact, taking the evidence in the light most favorable to the State, could find beyond a reasonable doubt each element of the crime charged. A person commits second degree robbery if he or she `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,' and with the intent to deprive the other of such property. Taken in the light most favorable to the State, the evidence in this case shows that Shepherd took property from Garner by force, and that he and Cook-Young drove off with the property after Garner got out of the car. Based on such evidence, a trier of fact could find each element of second degree robbery beyond a reasonable doubt. Accordingly, the evidence is sufficient to support the verdict.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)).
RCW 9A.56.190; RCW 9A.56.210; 11 Washington Pattern Jury Instructions: Criminal 37.04, at 482 (2d — ed. 1994) (WPIC).
State v. Kjorsvik, 117 Wn.2d 93, 98, 812 P.2d 86 (1991); 11 WPIC 37.04.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, A.C.J. and SEINFELD, J., concur.