State v. Farnsworth 184 Wash. App. 305

f 1 A jury found Charles Farnsworth guilty of first degree robbery, and the court sentenced him as a persistent offender to life without the possibility of parole. Farnsworth appeals, arguing that the evidence is insufficient to support his conviction.1 Because there was insufficient evidence of a threat, we agree with Farnsworth that there is insufficient evidence to support his robbery conviction. We affirm in part, vacate Farnsworth’s robbery conviction, and remand for the trial court to sentence Farnsworth on first degree theft.

Melnick, J.

FACTS2

¶2 Charles Farnsworth and James McFarland ran out of heroin. To get money to buy more, they robbed a branch of the Harborstone Credit Union in Tacoma. McFarland, 69 years of age at the time, entered the branch wearing a wig and sunglasses. He approached a teller at the counter and handed her a note stating, “No die [sic] packs, no tracking devices, put the money in the bag.” Clerk’s Papers (CP) at 34. Although the teller became confused because McFarland did not actually have a bag, the teller handed him about $300 in cash from a drawer. McFarland said, “Thank you” *308and left. 9 Report of Proceedings (RP) at 485. McFarland entered a truck driven by 59-year-old Farnsworth, and together they left the scene. A few blocks away, they were pulled over and arrested.

¶3 The State charged both Farnsworth and McFarland with first degree robbery. Farnsworth’s case went to trial. McFarland pleaded guilty to first degree theft and agreed to testify in Farnsworth’s trial.3

¶[4 According to McFarland, he and Farnsworth had no money and had been evicted from the trailer they used as a “dope house.” 13 RP at 1195. They were miserable from the effects of heroin withdrawal.

¶5 On the day of the instant crime, McFarland and Farnsworth spent six hours in the area near the credit union planning to steal from it. The initial plans called for McFarland to be the driver and Farnsworth to enter the credit union wearing a wig Farnsworth bought. But McFarland grew frustrated with Farnsworth’s incessant “hem-hawing” and fidgeting with the wig. 13 RP at 1232. Finally, McFarland grabbed the wig and resolved to do the job himself. McFarland put the wig on his head and Farnsworth adjusted it for him.

¶6 Farnsworth then wrote a note and handed it to McFarland. McFarland did not know exactly what the note said, but he believed it contained instructions to the teller. McFarland explained that “whenever you’re robbing a bank,” tellers do exactly what they are told. 14 RP at 1254.

¶7 The trial court instructed the jury on both first degree robbery and the lesser included crime of first degree theft. At the conclusion of the trial, the jury found Farnsworth guilty of first degree robbery as an accomplice.

*309¶8 The sentencing court entered findings of fact and conclusions of law determining that Farnsworth was a persistent offender because he had previously committed two most serious offenses. Accordingly, the court sentenced Farnsworth to life in prison with no possibility of parole. The sentencing court also imposed legal financial obligations on the basis of a boilerplate finding that Farnsworth has an ability or likely future ability to pay.

¶9 Farnsworth appeals from his judgment and sentence.

ANALYSIS

Sufficiency of the Evidence

¶10 Farnsworth argues that the evidence is insufficient to support his conviction as an accomplice to first degree robbery. We agree. Considering all of the facts presented to the jury, we conclude there is insufficient evidence of a direct, inherent, explicit, or implicit threat to uphold a conviction for robbery. There is also insufficient evidence that Farnsworth agreed to participate in any crime other than a theft from a financial institution. Accordingly, we hold that there is insufficient evidence to support Farnsworth’s robbery conviction.

¶11 When a defendant challenges the sufficiency of the evidence supporting his conviction, we examine the record to decide whether any rational fact finder could have found that the State proved each element of the offense beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). In a sufficiency of the evidence challenge, the defendant admits the truth of all the State’s evidence; therefore, we consider the evidence and all reasonable inferences from it in the light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Further, direct evidence and circumstantial evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

*310 ¶12 The term “robbery” is defined in RCW 9A.56.190.4

A person commits robbery when he or she unlawfully takes personal property from the person of another or in his or her presence against his or her will by the use or threatened use of immediate force, violence, or fear of injury to that person or his or her property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial.

(Emphasis added.)

f 13 A robbery conviction can be supported by evidence of any threat that induces an owner to part with his property. State v. Handburgh, 119 Wn.2d 284, 293, 830 P.2d 641 (1992). The Criminal Code defines a threat to include any direct or indirect communication of intent to cause bodily injury, to damage property, or to physically confine or restrain another person. RCW 9A.04.110(28)(a)-(c). Thus, when a rational fact finder could reasonably infer from the evidence that a defendant’s note made an implied threat to a bank teller, the evidence is sufficient to establish the disputed element of robbery. State v. Shcherenkov, 146 Wn. App. 619, 628-29, 191 P.3d 99 (2008).

¶14 Here, when viewing the evidence in the light most favorable to the State, McFarland and Farnsworth intended to steal money from a financial institution.5 6The original plan involved Farnsworth putting on. a disguise, entering the financial institution, and presenting the teller with a demand note. Farnsworth wrote the note, which said, “No die [sic] packs, no tracking devices, put the money in the bag.” CP at 34. However, when it came time to execute the *311plan, McFarland became frustrated with Farnsworth. As a result, McFarland wore the disguise, entered the bank, and made the demand. The teller became frightened and handed money to McFarland. He then exited the bank and entered the vehicle driven by Farnsworth.

¶15 The present circumstances differ from Shcherenkov, 146 Wn. App. 619, and State v. Collinsworth, 90 Wn. App. 546, 966 P.2d 905 (1997). In Shcherenkov, this court found the evidence sufficient to support convictions following four bank robberies where no force or violence was used. 146 Wn. App. at 622. In three of the robberies, the robber passed each bank teller a note that stated in part, “ ‘This is a robbery.’ ” Shcherenkov, 146 Wn. App. at 622-23. In the fourth, the robber’s note stated in its entirety, “ ‘Place $4,000 in an envelope. Do not make any sudden movements or actions. I will be watching you.’ ” Shcherenkov, 146 Wn. App. at 629. The robber also kept his hand in his pocket, causing the tellers to believe he had a gun. Shcherenkov, 146 Wn. App. at 622-23. This court held that a rational fact finder could reasonably infer that each of the four notes indirectly communicated a threat to use force if the teller failed to comply and the robber insinuated he had a weapon by keeping his hand in his pocket. Shcherenkov, 146 Wn. App. at 628-29.

¶16 Likewise, in Collinsworth, the court found the evidence sufficient to support robbery convictions where a robber, in six separate incidents, verbally demanded cash from a bank teller without displaying a weapon or articulating an overt threat. 90 Wn. App. at 553-54. In three of the robberies, the robber used a “ ‘direct,’ ” “ ‘demanding,’ ” or “ ‘serious’ ” voice. Collinsworth, 90 Wn. App. at 548-50. In two of them, the robber told the teller he was “ ‘serious’ ” after the teller failed to immediately comply. Collinsworth, 90 Wn. App. at 548, 550. And, two of the tellers believed the robber was armed although they did not actually see a weapon. Collinsworth, 90 Wn. App. at 549-50. In all six incidents, the teller testified either to feeling personally *312threatened or to fearing for the safety of others. Collins-worth, 90 Wn. App. at 548-51. And in four of the six incidents, the teller gave the robber money in accordance with a bank policy of compliance with such demands. Collins-worth, 90 Wn. App. at 548-50.

¶17 Here, there is insufficient evidence for a reasonable trier of fact to find the State proved beyond a reasonable doubt that Farnsworth planned to communicate to the teller an intent to use or threaten to use immediate force, violence, or fear of injury. McFarland simply handed over a note instructing the teller to “put the money in the bag.” CP at 34. McFarland did not insinuate that he would take further action if the teller did not comply with the note’s instructions. Unlike the tellers in Shcherenkov and Collins-worth who, based on the defendant’s actions, believed the robbers may have been armed, there is no such testimony here. And, in fact, there is no evidence that McFarland made threats or used violence. After receiving the money, he said, “Thank you.” 9 RP at 485.

¶18 Contrary to the dissent’s argument, the facts of this case do not show even a slight threat, either implicit or explicit. The dissent implies a threat based on the victim’s reactions and not the defendant’s actions. Unquestionably and justifiably the victim was scared; however, there is nothing in the record, directly or circumstantially, to support a reasonable trier of fact finding beyond a reasonable doubt that McFarland made an implied threat to use force, violence, or fear of injury to any person.

¶19 Another major distinguishing factor in this case from the preceding two cases is that Farnsworth acted as an accomplice, not a principal.

¶20 A person may be liable for the acts of another if he or she is an accomplice. RCW 9A.08.020(1), (2)(c). A person is an accomplice of another person in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she aids or agrees to aid *313such other person in planning or committing it. RCW 9A.08.020(3).

¶21 “But, the accomplice liability statute has been construed to apply solely when the accomplice acts with knowledge of the specific crime that is eventually charged, rather than with knowledge of a different crime or generalized knowledge of criminal activity.” State v. Holcomb, 180 Wn. App. 583, 590, 321 P.3d 1288, review denied, 180 Wn.2d 1029 (2014); State v. Cronin, 142 Wn.2d 568, 578-79, 14 P.3d 752 (2000); State v. Roberts, 142 Wn.2d 471, 512, 14 P.3d 713 (2000). “And the required aid or agreement to aid the other person must be ‘in planning or committing [the crime].’” Holcomb, 180 Wn. App. at 590 (alteration in original) (quoting RCW 9A.08.020(3)(a)(ii)).

¶22 To convict a person of robbery as an accomplice, the State must prove at trial, among other elements, that the accomplice knew that the principal intended the use or threatened use of immediate force, violence, or fear of injury in taking or retaining property.6 RCW 9A.56.190.

¶23 There is no evidence that Farnsworth ever agreed to aid, abet, or encourage the commission of a crime that involved the use or threatened use of force, violence, or fear of injury. The dissent lists evidence showing that McFarland and Farnsworth planned to steal from the bank. Dissent at 318-20. But the evidence does not show that the *314plan involved force or the threatened use of force. We cannot say that when the plan merely calls for the principal to hand a “demand note” to a teller of a financial institution that a robbery occurs.

¶24 Farnsworth further argues that by implying a threat in this situation any theft from a financial institution would be a robbery. We agree that a robbery conviction under these facts would blur the line between theft and robbery.7 We hold there is insufficient evidence to support Farnsworth’s robbery conviction.

¶25 Next, we consider the appropriate remedy. We may remand for sentencing on a lesser included offense where (1) the trial court instructed the jury on the lesser included offense and (2) the jury necessarily considered the elements of the offense in finding the defendant guilty of the greater offense. Green, 94 Wn.2d at 234-35. Here, the trial court instructed the jury on the lesser included offense of first degree theft. The jury was instructed that one of the elements of first degree robbery is whether the defendant intended to commit theft of the property. Accordingly, in finding Farnsworth guilty of first degree robbery, the jury necessarily considered the elements of first degree theft. Therefore, we remand for sentencing on the lesser included offense of first degree theft.

¶26 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.

Johanson, C.J., concurs.

¶27 (dissenting in part) — The majority holds that, as a matter of law, a person does not commit a *315robbery when he obtains money by entering a bank wearing a disguise and handing a bank teller a note demanding the unconditional surrender of money to which he has no conceivable claim. I respectfully disagree.

*314Worswick, J.

*315¶28 I would hold that sufficient evidence supports Charles Farnsworth’s robbery conviction. Because I would affirm this conviction, I would also reach Farnsworth’s challenge to his sentence as a persistent offender. But I agree with the majority as to all other issues decided in the unpublished portion of its opinion.

¶29 The majority states the correct rules governing our review of Farnsworth’s sufficiency of the evidence claim. We must decide whether any rational trier of fact could have found that the State proved each element of robbery beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). By making this claim, Farnsworth has admitted the truth of all the State’s evidence, and we must draw all reasonable inferences in the light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

¶30 However, the majority misapplies these rules in deciding that there was insufficient proof of (1) a threat communicated by James McFarland and (2) Farnsworth’s complicity, which requires his knowledge that his actions would promote or facilitate McFarland’s robbery. In my opinion, a rational trier of fact could conclude beyond a reasonable doubt that the State proved both issues.

A. Threat

¶31 Before examining the evidence of McFarland’s threat, it is necessary to address the majority’s concern that the elements of robbery could be interpreted too broadly. The majority asserts that “a robbery conviction under these facts would blur the line between theft and robbery.” Majority at 314.

*316¶32 A recitation of the elements of theft and robbery shows that this concern is unfounded. A defendant commits theft when he wrongfully takes property from another person with intent to deprive the person of the property. RCW 9A.56.020(l)(a). In contrast, a defendant commits robbery when he unlawfully takes property from another person against the person’s will “by the use or threatened use of immediate force, violence, or fear of injury j Former RCW 9A.56.190 (1975) (emphasis added).

¶33 Thus when any threat — “no matter how slight”— induces a person to part with his property, a robbery has occurred. State v. Handburgh, 119 Wn.2d 284, 293, 830 P.2d 641 (1992). Former RCW 9A.04.110(27)(a) (2007) defines a threat to include any direct or indirect communication of intent to cause bodily injury to the person threatened or to any other person. As the majority recognizes, a threat may be implied or explicit. State v. Shcherenkov, 146 Wn. App. 619, 628-29, 191 P.3d 99 (2008).

¶34 Because McFarland did not make an explicit threat, the issue here is whether McFarland obtained money from the teller by making an implied threat to use force, violence, or fear of injury. I agree with the majority that the evidence is sufficient to establish this element of robbery when (1) it shows a defendant gave a note to a bank teller and (2) a rational trier of fact could reasonably infer that the note implied a threat. Shcherenkov, 146 Wn. App. at 628-29.

¶35 I disagree, however, with the majority’s conclusion that it is unreasonable for any rational trier of fact to infer a threat here. McFarland gave the teller a note stating, “No die [sic] packs, no tracking devices, put the money in the bag.” Clerk’s Papers at 34. This is a naked demand for money, unsupported by any claim of right. I agree with Division One of this court that it is reasonable for a rational trier of fact to infer that such a demand is “fraught with the implicit threat to use force.” State v. Collinsworth, 90 Wn. App. 546, 553, 966 P.2d 905 (1997) (per curiam). Indeed, without the implicit threat to use force, it is difficult to *317imagine why the teller would comply with the note’s demand for money.

¶36 Nonetheless, Farnsworth asserts that the teller gave McFarland money simply because it was the credit union’s policy to comply with any note’s demand — not because McFarland made a threat. But the teller’s testimony contradicts this assertion. The teller complied because she “didn’t want anybody else to get harmed, and [she] didn’t know what he was capable of doing.” 9 Report of Proceedings (RP) at 486. Moreover, because the policy allowed a robber to “get out as quick as possible so nobody else can get harmed,” the policy itself recognized that a naked demand for the bank’s money conveys a threat of violence. 9 RP at 486.

¶37 Further, under the circumstances in which McFarland delivered the note, it is all the more reasonable to infer that McFarland communicated a threat. As soon as McFarland entered the credit union, the teller became suspicious because he was wearing a wig and dark sunglasses while “looking around acting all fidgety.” 9 RP at 477. When McFarland approached the teller at her counter, he kept his arms crossed and leaned over the counter “[p]ast [her] comfort zone.” 9 RP at 480. Viewed in the light most favorable to the State, testimony that a man in disguise made the teller physically uncomfortable bolsters the reasonable inference that the man communicated an implied threat of violence.8

¶38 In addition, the majority’s analysis is flawed in one important respect when it distinguishes this case from Shcherenkov, 146 Wn. App. 619, and Collinsworth, 90 Wn. App. 546. The majority considers only the direct evidence, without drawing any inferences from it. But we are required to draw all reasonable inferences in the State’s favor and to consider direct and circumstantial evidence equally reliable. Salinas, 119 Wn.2d at 201; Delmarter, 94 Wn.2d at 638.

*318¶39 Lastly, I note that the majority’s analysis of the evidence in this case omits substantive analysis regarding the conclusions that a rational trier of fact could form. This omission matters because the sufficiency of the evidence inquiry is limited to protecting the constitutional standard of proof beyond a reasonable doubt. Green, 94 Wn.2d at 221. Thus we are not to weigh the evidence to decide what we believe it proved; instead we must decide whether “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt! ” Green, 94 Wn.2d at 221-22 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). Because I would hold that a rational trier of fact could find beyond a reasonable doubt that McFarland communicated an implied threat, I would affirm Farnsworth’s robbery conviction.

B. Complicity

¶40 The majority further decides that the evidence is insufficient to show that Farnsworth was an accomplice to McFarland’s robbery. As an initial matter, I note that neither party raised or briefed this issue. In addition, I disagree with the majority’s analysis.

¶41 A defendant is liable as an accomplice for another person’s crime if the defendant (1) “[a]ids or agrees to aid such other person in planning or committing it” and (2) has “knowledge that it will promote or facilitate the commission of the crime.” RCW 9A.08.020(3)(a)(ii). Complicity requires merely general knowledge of the principal’s crime, not actual knowledge of each specific element. State v. Roberts, 142 Wn.2d 471, 513, 14 P.3d 713 (2000).9 But the majority ignores this rule in concluding that the evidence is insufficient to show that Farnsworth knew McFarland would use or threaten to use force, violence, or fear of injury.

*319¶42 I disagree with the majority’s assertion that “[t]he fact McFarland said they were planning a ‘bank robbery’ is irrelevant to our resolution of the case.” Majority at 310 n.5. We are required to examine the evidence in the record when we consider the sufficiency of the evidence. Green, 94 Wn.2d at 221. And McFarland’s testimony about the plans he made with Farnsworth is clearly relevant to Farnsworth’s general knowledge of McFarland’s crime. See Roberts, 142 Wn.2d at 513.

¶43 The evidence here is more than sufficient to prove Farnsworth’s complicity. McFarland testified that he had been struggling for months to pay for heroin and living expenses, while Farnsworth consumed heroin without paying for it. According to McFarland, Farnsworth explained his inability to pay by repeatedly saying, “Well, if I had a gun, I’d do a robbery, I’d do a robbery, I’d do a robbery.” 13 RP at 1201. Although McFarland believed Farnsworth was merely boasting, Farnsworth bought a wig and remarked, “[A] 111 need is a gun.” 13 RP at 1237.

¶44 Eventually McFarland became so desperate that he began listening to Farnsworth and agreed to help him “do the robbery.” 13 RP at 1207. Together, Farnsworth and McFarland “cased” two banks before choosing the one to rob.

¶45 The initial plan called for McFarland to drive and for Farnsworth to commit the robbery “[bjecause it was his deal. He was the one always talking about the robbery.” 13 RP at 1207. But on the day of the robbery, McFarland’s brother forbade him from driving because he was too drunk; Farnsworth drove instead.

¶46 At one point, McFarland and Farnsworth planned to use a bicycle to flee the bank. Farnsworth tested the bicycle by riding it out of McFarland’s sight, and when Farnsworth returned the bike was broken. Although McFarland understood that Farnsworth would rob the bank, Farnsworth repeatedly backed out by making excuses for not going into the bank. Because Farnsworth was “an expert at using people,” McFarland suspected that Farnsworth may have *320intentionally broken the bicycle and backed out so that McFarland would become frustrated and perform the robbery himself. 13 RP at 1230.

¶47 Fed up with Farnsworth’s “hem and hawing,” McFarland grabbed the wig, put it on, and decided to rob the bank himself. 13 RP at 1233. Farnsworth helped by adjusting the wig on McFarland’s head before McFarland entered the bank to rob it.

¶48 Viewed in the light most favorable to the State, this evidence shows that (1) Farnsworth aided McFarland in planning and committing the bank robbery and (2) Farnsworth had general knowledge that his actions would promote or facilitate this crime. See RCW 9A.08.020(3)(a)(ii); Roberts, 142 Wn.2d at 513. Therefore the evidence is sufficient to prove Farnsworth’s complicity.

¶49 Even if the State were required to prove that Farnsworth had specific knowledge of each element of McFarland’s robbery, as the majority suggests, I would find the evidence here sufficient. Farnsworth wrote the note that McFarland ultimately handed to the teller. As explained above, I would hold that a rational trier of fact could reasonably infer that the note communicated an implied threat. I would also hold that a rational trier of fact could conclude beyond a reasonable doubt that Farnsworth knew that writing the note would promote or facilitate the implied threat that McFarland communicated by delivering the note to the teller.

¶50 I would affirm Farnsworth’s robbery conviction and reach the sentencing issues.

After modification, further reconsideration denied January 13, 2015.

Review granted for the State and for defendant Farnsworth at 183 Wn.2d 1001 (2015).