STATE v. PETERSON (2007)

PUBLISHED IN PART OPINION

¶ 1 Ronnie Adam Tyler Peterson appeals his bench trial convictions for attempted first degree robbery and first degree malicious mischief, both committed while armed with a deadly weapon.   He argues that (1) a missing element in the amended information charging malicious mischief warrants reversal of his conviction;  (2) the evidence is insufficient to support the trial court's finding that he possessed a deadly weapon, as defined under RCW 9.94A.602, while committing malicious mischief;  and (3) the evidence is insufficient to support his attempted robbery conviction.   We vacate the deadly weapon sentencing enhancement on the malicious mischief count.   Otherwise, we affirm.

FACTS

I. The Incident

¶ 2 Late one December, Don Westfall, his son Donnie Westfall,¹ and Donnie's friend Ryan Johnson returned from a ski trip in Westfall's truck.   Arriving at the Mud Bay Park and Ride lot outside Olympia, where Johnson had left his car, they noticed two vehicles, Johnson's and another's, parked close to each other.   Johnson's car's emergency flashers were blinking.   When Westfall's truck pulled up next to Johnson's car, Ronnie Adam Tyler Peterson appeared from the passenger-side door, looked at Westfall's truck, and ran in the opposite direction, wielding the same knife he had used to extract the stereo.

¶ 3 Westfall ordered Donnie to drive after Peterson, who was also carrying something that looked like “the car stereo” under his arm.   Peterson jumped into the bushes bordering the park and ride lot perimeter, but he was unable to penetrate further into the dense bushes.   Westfall jumped out of his truck, pursued Peterson on foot, and shouted for Peterson to stop and to come out.   At some point during this pursuit, Peterson dropped the car stereo into the ditch just beyond the bushes.

¶ 4 With his right hand extended, Peterson approached Westfall and shouted something like, “I have a knife.   I will cut you.”   Grabbing Peterson by the wrists, Westfall tackled and pinned him to the ground.   Seeing a knife in Peterson's right hand, Westfall applied pressure to Peterson's wrist, forcing him to drop the knife.   Donnie picked up the knife and threw it 10 to 15 feet away.   Westfall told Johnson to call 9-1-1.   The only other vehicle in the parking lot, which had been parked near Johnson's car, drove up and stopped next to Westfall, Donnie, Johnson, and Westfall's truck.   Peterson yelled for the driver, “Eric,” to leave, and the vehicle drove off.

¶ 5 Shortly thereafter, a deputy sheriff arrived and took Peterson into custody.   Thurston County Sheriff's Deputy Chris Ivanovich noticed a car stereo on the ground and a lockable knife nearby.   The blade of the knife measured exactly three inches.   The knife that Petersen used to threaten Westfall was the same knife he had used to pry the stereo out of Johnson's car.²

¶ 6 A deputy advised Peterson of his Miranda³ rights, which he waived.   Peterson admitted that he broke into Johnson's car using a “window-punch” and that he had stolen the car stereo.   The deputy tape-recorded this admission.

¶ 7 Deputy Ivanovich then inspected Johnson's vehicle:  The passenger-side window was smashed, the inside of the vehicle was ransacked, and the dashboard was damaged where the car stereo had been.   The damage to Johnson's car totaled approximately $2,000.

II. Procedure

¶ 8 The State charged Peterson with (1) one count of attempted robbery in the first degree while armed with a deadly weapon, or in the alternative, assault in the second degree while armed with a deadly weapon;  and (2) one count of malicious mischief in the first degree while armed with a deadly weapon.   Peterson waived his right to a jury trial.

¶ 9 The trial court found Peterson guilty of (1) attempted robbery in the first degree while armed with a deadly weapon, and (2) malicious mischief in the first degree while armed with a deadly weapon.   In sentencing Peterson, the trial court imposed consecutive deadly weapon enhancements for the two counts.

¶ 10 Peterson appeals.

ANALYSIS

I. Sufficiency of Evidence

¶ 11 Peterson challenges the sufficiency of the evidence supporting the deadly weapon enhancement for his malicious mischief conviction.   Peterson admitted at trial that while inside Johnson's car, he had used his three-inch knife to cut the wires to the stereo. But he argues that it does not meet the statutory definition of “deadly weapon” for sentencing enhancement purposes.   We agree with Petersen that the record does not show that his use of the three-inch bladed knife to cut the car stereo wires was in a manner “likely to produce or [might] easily and readily produce death,” sufficient to meet the statutory definition of a deadly weapon under RCW 9.94A.602.

A. Standard of Review

 ¶ 12 Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.  State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).  “A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.”  Salinas, 119 Wash.2d at 201, 829 P.2d 1068.   Circumstantial evidence and direct evidence are equally reliable.  State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980).

B. Deadly Weapon

 RCW 9.94A.602 provides, in pertinent part:

In a criminal case wherein there has been a special allegation and evidence establishing that the accused or an accomplice was armed with a deadly weapon at the time of the commission of the crime, the court shall make a finding of fact of whether or not the accused or an accomplice was armed with a deadly weapon at the time of the commission of the crime.

(Emphasis added.)   There are two ways an instrument can qualify as a “deadly weapon” under this statute:  (1) The instrument is specifically listed as a “deadly weapon” in 9.94A.602;  or (2) the instrument “has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death.”  RCW 9.94A.602. We address each in turn.

1. Per se deadly weapon

¶ 13 RCW 9.94A.602 lists the following instruments as automatic or per se “deadly weapons” for purposes of the deadly weapon sentencing enhancement:

Blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any dirk, dagger, pistol, revolver, or any other firearm, any knife having a blade longer than three inches, any razor with an unguarded blade, any metal pipe or bar used or intended to be used as a club, any explosive, or any weapon containing poisonous or injurious gas.

(Emphasis added.)   The trial court found and State agrees that the Peterson's three-inch knife does not fall within this statutory list of per se deadly weapons.

2. Non per-se deadly weapon

¶ 14 Because the three-inch knife that Peterson used to damage Johnson's car and to extract the stereo does not fall within the statutory list of per se deadly weapons, we focus on the second deadly weapon category-whether the knife Peterson used to remove the car's stereo is an instrument that “ has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death.”  RCW 9.94A. 602 (emphasis added).

¶ 15 The trial court concluded, and the State argues on appeal, that the three-inch knife Peterson used to extract the car stereo qualifies under this second “deadly weapon” category because it (1) had the capacity to inflict death, and (2) Peterson's manner of use could easily and readily have produced death.   We acknowledge that this is a close question.   But we have difficulty understanding how Peterson's manner of use could easily and readily have produced death where there was no other person in or near Johnson's car while Petersen was using the knife to cut the stereo wires and to pry out the stereo in a deserted park and ride lot.

¶ 16 Moreover, although the trial court engaged in an extensive inquiry to determine whether Peterson possessed a deadly weapon during his subsequent robbery of Westfall,⁴ it did not make a separate inquiry to determine whether the manner in which Peterson used the knife to commit malicious mischief in Johnson's car met the criteria for a deadly weapon for that separate crime.   Instead, the trial court summarily concluded that the deadly weapon sentence enhancement should apply to the malicious mischief conviction as well.⁵  Our independent review of the record leads us to conclude that the evidence does not support the trial court's deadly weapon finding for the malicious mischief count.

¶ 17 RCW 9.94A.602 requires that, if an instrument is not on the statute's list of per se deadly weapons, then the instrument qualifies as “deadly weapon” only if it has (1) the capacity to inflict death and (2) the defendant uses it in a way likely to produce death or that may easily and readily produce death.   Here, we assume, without deciding, that a knife with a three-inch blade has the capacity to inflict death, thus, meeting the first criterion for a non-per se deadly weapon.   Instead, we focus on the second non-per se deadly weapon criterion-the manner of the defendant's use of the knife and the likelihood that its manner of use will easily and readily produce death.

¶ 18 This second criterion-“from the manner in which it is used, is likely to produce or may easily and readily produce death,” RCW 9.94A.602-implies the presence of another person against whom Petersen could have readily used the knife while committing the malicious mischief.   But there is no evidence that any other person was present or nearby while Petersen was using the knife to cut the stereo wires or, from Petersen's “manner of use” of the knife, that he would have used it to assault Westfall had he approached Petersen while still in Johnson's car cutting the stereo wires.

¶ 19 On the contrary, when Westfall approached Johnson's car, Petersen jumped out of the car, fled across the parking, and attempted to escape capture and confrontation by leaping into the bushes;  Petersen did not threaten Westfall with the knife during his initial flight with the stereo.   Not until the tangle of bushes thwarted Petersen's escape and Westfall confronted him did Petersen threaten Westfall with the knife in an attempt to prevent Westfall from tackling him and reclaiming Johnson's car stereo.

¶ 20 We agree with Petersen that (1) at the time he was using the knife to cut the stereo wires, there were no other persons present against whom he could have used the knife in a deadly manner;  and (2) his manner of use of the knife during the malicious mischief was not likely or easily and readily able to produce death.   Petersen's use of the knife during his commission of the malicious mischief does not meet the statutory criteria for a non-per se deadly weapon for sentencing enhancement purposes under RCW 9.94A.602.

¶ 21 Accordingly, we hold that the trial court erred in imposing a deadly weapon sentencing enhancement on the malicious mischief count.   Therefore, we vacate the deadly weapon sentencing enhancement on Count II, malicious mischief, and remand to the trial court to correct the judgment and sentence.

¶ 22 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 pursuant to RCW 2.06.040, it is so ordered.

C. Attempted First Degree Robbery

¶ 23 Peterson also argues that the evidence does not support his attempted robbery conviction because:  (1) by the time he confronted Westfall, he had abandoned Johnson's car stereo;  (2) there was no other item he was arguably trying to take by force;  and (3) therefore, any force he used against Westfall was not in the commission of a robbery but rather to aid his escape.

¶ 24 The State responds that trial court correctly concluded that, under State v. Johnson, 155 Wash.2d 609, 121 P.3d 91 (2005), the attempted robbery was continuing, not subject to segregation into separate sequential events.

¶ 25 Our relevant inquiry is:  (1) Did the trial court properly ascertain and apply the Johnson rule;  and (2) does the evidence sufficiently support the trial court's conclusions?   We address each question in turn.

1. State v. Johnson

¶ 26 We review a trial court's interpretation of case law de novo.   State v. Willis, 151 Wash.2d 255, 261, 87 P.3d 1164 (2004);  see also State v. Campbell, 125 Wash.2d 797, 800, 888 P.2d 1185 (1995).   Here, the trial court concluded that under Johnson, a defendant is still engaged in the commission of a robbery, even though he drops the stolen property during a threat of force, where that defendant intends the threat of force to effectuate retention of the property.   Such is the case here.

¶ 27 In Johnson, our Supreme Court held that robbery occurs when a defendant either (1) uses force or threat of force to obtain property, (2) uses force or threat of force to retain property, or (3) uses force to overcome resistance to the taking of the property.  Johnson, 155 Wash.2d at 611, 121 P.3d 91.6  The Johnson opinion is based on the Court's earlier opinion in State v. Handburgh, 119 Wash.2d 284, 830 P.2d 641 (1992). 7  Handburgh articulated the legal principle that robbery occurs when a defendant uses force to retain possession of property, even if the defendant initially took the property peaceably or took it in the owner's absence.  Handburgh, 119 Wash.2d at 293, 830 P.2d 641.   This principle incorporates the statutory elements of armed robbery.8

¶ 28 Thus, Washington law has established that robbery requires a defendant's use or threat of force to relate to taking or to retaining another's property.   Under this construction, Peterson is guilty of robbery if he confronted Westfall and used force in an attempt to overcome resistance to his taking the stereo.   We affirm Peterson's attempted robbery conviction because the evidence sufficiently supports this verdict.

2. Sufficiency of the Evidence

¶ 29 Westfall testified that Peterson dropped the stereo only after Westfall got out of his truck and confronted Peterson, who was already wielding a knife.   Peterson admitted to Deputy Holden that he was holding the stereo and the knife when Westfall confronted him.9  And Deputy Ivanovich observed the stereo “[l]ess than 10 feet” from where Westfall had pinned Peterson.   Viewing the evidence, post-conviction, in the light most favorable to the State, we hold that the evidence is sufficient to support the trial court's finding that Peterson used force against Westfall in an attempt to overcome Westfall's resistance to Peterson's taking the stereo he had just removed from Johnson's vehicle.

II. Amended Information Charging Malicious Mischief

¶ 30 Peterson argues, for the first time on appeal, that we must reverse and dismiss his malicious mischief conviction because the amended information failed to state one of the essential elements of the crime, i.e., that he caused damage to the property of another.   The State counters that the amended information adequately conveyed notice to Peterson of the malicious mischief charge because (1) it charged that Petersen “knowingly and maliciously caused physical damage” (emphasis added);  and (2) the statutory definition of “maliciously” includes harm to the person or property of another.  RCW 9A.04.110 (12).

¶ 31 Peterson's argument fails.

A. Standard of Review

¶ 32 Our review of a charging document depends on whether the defendant raised the issue before the trial court before the verdict or whether he raises it for the first time on appeal.   See State v. Kjorsvik, 117 Wash.2d 93, 104-05, 812 P.2d 86 (1991).   The general rule under Article 1, section 22 of the Washington Constitution and the Sixth Amendment to the United States Constitution is that a charging document must set forth all of the essential elements of an alleged crime so the defendant is apprised of the nature of the charge(s) against him, and can prepare an adequate defense.  Kjorsvik, 117 Wash.2d at 97, 812 P.2d 86.

¶ 33 Because Peterson challenges the sufficiency of the amended information for the first time on appeal, we engage in a liberal construction analysis of the charging documents.   Under a liberal construction analysis, we examine (1) whether the essential elements of the alleged crime appear in any form in the charging document, or whether they can be found by fair construction;  and (2) if so, whether the defendant can show that he was nonetheless actually prejudiced by the in artful language in the document which caused the lack of notice.  Kjorsvik, 117 Wash.2d at 105-06, 812 P.2d 86.10

B. Sufficiency of the Amended Information

¶ 34 The amended information states, in pertinent part:

COUNT II:  MALICIOUS MISCHIEF IN THE FIRST DEGREE WHILE ARMED WITH A DEADLY WEAPON;  RCW 9A.48.070(1)(a);  9.94A.602;  CLASS B FELONY:

In that the defendant, RONNIE ADAM TYLER PETERSON, in the State of Washington, on or about the 28th day of December, 2005, did knowingly and maliciously cause physical damage in excess of $1,500 while armed with a deadly weapon;

That at the time of the commission of said crime, the defendant was armed with a deadly weapon as proscribed by RCW 9.94A.602.

Clerk's Papers at 18 (emphasis added.)

¶ 35 RCW 9A.48.070(1)(a) provides that a person is guilty of malicious mischief in the first degree if he knowingly and maliciously “[c]auses physical damage to the property of another in an amount exceeding one thousand five hundred dollars.”  RCW 9A.48.070(1)(a) (emphasis added).   Peterson contends that failure to include in Count II the language, “to the property of another,” deprived him of notice of the nature of the charges against him and of the opportunity to prepare an adequate defense.   We disagree.

1. Charging language

¶ 36 Because Peterson brings this issue before us for the first time on appeal, we liberally construe the charging document to see whether it contains the elements of the crime in any form.  Kjorsvik, 117 Wash.2d at 105-06, 812 P.2d 86.   As the State argues, RCW 9A.04.110 (12) defines “malice” and “maliciously” as connoting:

[A]n evil intent, wish, or design to vex, annoy, or injure another person.   Malice may be inferred from an act done in willful disregard for the rights of another, or an act wrongfully done without just cause or excuse, or an act or omission of duty betraying a willful disregard of social duty.

RCW 9A.04.110 (emphasis added).   Thus, the charging language “maliciously” includes within its definition harm to the person, rights, or property of another.   Therefore, we hold that, taken as a whole, Count II of the amended information contains all elements of the crime of malicious mischief in the first degree.

2. No prejudice

¶ 37 Nonetheless, Peterson can prevail if he can prove that the language of the information actually prejudiced him.   But Peterson fails to meet this burden:  He fails to prove that the in artful language of the amended information prejudiced him or his ability to prepare his defense.

¶ 38 First, the State's amended information also charges Peterson in Count I with attempted robbery in the first degree, expressly asserting that Peterson unlawfully took the personal property of another.   The incident giving rise to the State's robbery charges against Peterson involved only one victim's property-Johnson's car and Petersen's theft of Johnson's stereo from that car.   Thus, the plain language clearly informed Petersen of the property he was charged with stealing and the owner of that property.

¶ 39 Second, the heading for Count II, malicious mischief in the first degree, cites RCW 9A.48.070(1)(a).   This statute clearly states all elements of the proscribed conduct constituting malicious mischief in the first degree, including causing “physical damage to the property of another.”   Moreover, the cure for any doubt Petersen might have had would have been a request for a bill of particulars under CrR 2.1(c).

¶ 40 Third, Peterson fails to prove that in artful language of Count II of the amended information actually prejudiced him or his ability to present an adequate defense.   In his Appellant's Brief, Peterson states merely, “The amended information failed to apprise Peterson of all of the elements of malicious mischief in the first degree.”   Br. of Appellant at 14.   But our review of the record shows that during trial, Peterson (1) readily admitted to causing damage to Johnson's car in excess of $1,500, and (2) focused instead on avoiding the deadly weapon enhancement for the malicious mischief charge.   In addition, there is no question Peterson was fully aware that the property he damaged was the property of another, i.e., Johnson.   For these reasons, we reject Peterson's argument.

¶ 41 We vacate the deadly weapon sentencing enhancement for the malicious mischief count and otherwise affirm.   We remand to the trial court to strike the deadly weapon sentencing enhancement for the malicious mischief count from the judgment and sentence.

FOOTNOTES

1.   We use Donnie's first name for clarity.   We intend no disrespect.

2.   Peterson told the deputy that he had a second knife.   And a subsequent pat-down search by responding Sheriff's Deputy Mark Holden revealed a third knife in Petersen's pocket.   The State does not allege and the record does not show, however, that Petersen used or displayed either of these two other knives while committing the charged crimes.

3.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

4.   In determining whether Peterson possessed a deadly weapon during commission of the robbery, the trial court concluded that, under State v. Johnson, 155 Wash.2d 609, 610-11, 121 P.3d 91 (2005), robbery includes the use of force in an attempt to obtain or to retain possession of the stolen property.   The trial court ruled that Peterson's commission of the robbery was still ongoing when he confronted Westfall near the bushes because at that time Peterson was attempting to retain the stereo.   Therefore, Peterson's knife brandishing during the continuing commission of the robbery qualified the knife as a deadly weapon under RCW 9.94A.602. Petersen does not challenge this ruling on appeal.

5.   The trial court stated:Now, the second count was malicious mischief in the first degree. The evidence as to that count was essentially stipulated.   There was no contrary evidence that the physical damage was in excess of $1,500 to the vehicle.   This Court, finding that it was with a deadly weapon, will also find the defendant guilty as charged of Count 2 with the special weapons enhancement.Report of Proceedings at 145-46.

FN6.  The Court also held that use of or threat to use force while attempting to escape or to resist apprehension following a theft is not a robbery.  Johnson, 155 Wash.2d at 610, 121 P.3d 91.   Johnson attempted to steal a television-video cassette recorder combo from Wal-Mart by loading it into a shopping cart and walking out of the store with it without paying.   When confronted by security guards, he abandoned the television, started to run away, then suddenly turned around and punched one guard in the nose before running away again.  Id. Because the trial court's unchallenged findings of fact stated that Johnson was attempting to escape when he punched the guard, the Court held that his use of force did not relate to taking or retaining the property of another.  Id. at 611, 121 P.3d 91..  FN6.  The Court also held that use of or threat to use force while attempting to escape or to resist apprehension following a theft is not a robbery.  Johnson, 155 Wash.2d at 610, 121 P.3d 91.   Johnson attempted to steal a television-video cassette recorder combo from Wal-Mart by loading it into a shopping cart and walking out of the store with it without paying.   When confronted by security guards, he abandoned the television, started to run away, then suddenly turned around and punched one guard in the nose before running away again.  Id. Because the trial court's unchallenged findings of fact stated that Johnson was attempting to escape when he punched the guard, the Court held that his use of force did not relate to taking or retaining the property of another.  Id. at 611, 121 P.3d 91.

FN7.  In Handburgh, the juvenile defendant took the victim's bicycle in her absence.   The victim demanded that Handburgh return her bicycle, but Handburgh refused and rode away, later dropping it in a nearby alley.   Handburgh, 119 Wash.2d at 285-86, 830 P.2d 641.   When the victim tried to retrieve her bicycle, Handburgh threw rocks at her, and a fight ensued.   The victim fled, and Handburgh abandoned the bicycle.  Id. at 286, 830 P.2d 641.   The Court held that Handburgh was guilty of robbery because he used force to retain possession of the stolen bicycle.  Id. at 293, 830 P.2d 641..  FN7.  In Handburgh, the juvenile defendant took the victim's bicycle in her absence.   The victim demanded that Handburgh return her bicycle, but Handburgh refused and rode away, later dropping it in a nearby alley.   Handburgh, 119 Wash.2d at 285-86, 830 P.2d 641.   When the victim tried to retrieve her bicycle, Handburgh threw rocks at her, and a fight ensued.   The victim fled, and Handburgh abandoned the bicycle.  Id. at 286, 830 P.2d 641.   The Court held that Handburgh was guilty of robbery because he used force to retain possession of the stolen bicycle.  Id. at 293, 830 P.2d 641.

FN8.  Under RCW 9A.56.190, robbery has three elements:  (1) unlawfully taking personal property from another or in their presence, (2) against his will, (3) by use or threatened use of immediate force.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.RCW 9A.56.190 (emphasis added)..  FN8.  Under RCW 9A.56.190, robbery has three elements:  (1) unlawfully taking personal property from another or in their presence, (2) against his will, (3) by use or threatened use of immediate force.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.RCW 9A.56.190 (emphasis added).

FN9.  We do not reassess on appeal the credibility of Peterson's trial testimony that he dropped the stereo while running in the parking lot.   Rather, it is the trial court that assessed his credibility..  FN9.  We do not reassess on appeal the credibility of Peterson's trial testimony that he dropped the stereo while running in the parking lot.   Rather, it is the trial court that assessed his credibility.

FN10.  In contrast, we engage in a strict construction analysis only if the defendant challenges the sufficiency of the charging document before the verdict.   In that instance, we strictly construe the charging language, and find it insufficient if it fails to clearly state the necessary elements.  State v. Ralph, 85 Wash.App. 82, 84-85, 930 P.2d 1235 (1997)..  FN10.  In contrast, we engage in a strict construction analysis only if the defendant challenges the sufficiency of the charging document before the verdict.   In that instance, we strictly construe the charging language, and find it insufficient if it fails to clearly state the necessary elements.  State v. Ralph, 85 Wash.App. 82, 84-85, 930 P.2d 1235 (1997).

HUNT, J.