Opinion
No. 50980-2-I.
Filed: June 7, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-02152-9. Judgment or order under review. Date filed: 08/23/2002. Judge signing: Hon. Steven C Gonzalez.
Counsel for Appellant(s), Jennifer L Dobson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
We review a trial court's evidentiary ruling for abuse of discretion. Where a trial court's evidentiary ruling has a tenable basis, the fact that we might have ruled the other way on a close issue is not a ground for reversal. We also reject Lord's contention that the trial court was required to give a cautionary instruction regarding testimony by an alleged accomplice in this case. Accordingly, we affirm Lord's conviction for robbery and burglary.
FACTS
Stefan Lord was charged with first degree robbery with a firearm enhancement and first degree burglary in relation to a robbery committed in the home of Donnie Falkowski. Falkowski, an admitted drug dealer, testified that she was robbed by four men in her home very early on the morning of January 6, 2002. Falkowski told police that around 2:30 a.m. a woman, later identified as April Sprague, knocked on her door and asked her if she had any marijuana for sale. When Falkowski replied to the woman that she did not have any marijuana and started to close the door, four men forced their way into her home. All but one of the men wore bandanas as masks covering their lower faces. Falkowski testified that the unmasked man held a gun to her head, threw her onto the couch, and asked for marijuana. Falkowski testified that this individual was a tall, skinny black man.
Falkowski testified that the three masked men ran through the rooms of her house. She stated that at least one of the masked men also had a gun. Falkowski told the tall, skinny man that he could have her bongs and her money, and he let her up off the couch. Falkowski testified that she took him upstairs to her bedroom and gave him money. She then took him to the office and gave him both her bongs. Falkowski stated that she was then taken back downstairs to the main floor of the house.
The tall, skinny man continued to hold a gun to Falkowski's head and ask for marijuana. At this point, Falkowski's mother came upstairs from her basement bedroom and told Falkowski to send her friends home. Falkowski said someone pointed a gun at her mother, that she ran toward her mother to protect her, and that she and her mother both ran downstairs. When Falkowski looked upstairs moments later, the four men were gone.
Falkowski testified that some of her friends soon arrived from a party and helped her to clean up the house to eliminate any evidence of marijuana sales before she called the police. She testified she did not initially tell police that she sold marijuana because she did not want to get into trouble. Falkowski testified the men took more than the $40 she previously stated to police they had taken.
During the incident, Falkowski heard one of the men with a bandana over his face state that she was lying about having no marijuana, and she recognized him as Aaron Wilson, a man she had previously dated. She told police she recognized Wilson by his eyes and his voice. Falkowski testified that she had not seen Wilson for a long time, until just a few days before the incident when he came to her house with a friend named Brandon Hargrove, to buy marijuana. Falkowski described Wilson as a fair-skinned black man with pretty eyes who was about five foot ten inches tall. Falkowski stated that during the robbery, Wilson ran upstairs and went directly to the box where she kept her marijuana, but he found that the box was empty.
Falkowski described Brandon Hargrove as a tall, overweight black man about 6 foot 6 inches in height. Falkowski testified she had known Hargrove since seventh grade, and that he was not one of the robbers. Falkowski's mother also testified at trial. She stated that she recognized Wilson as one of the robbers, but did not see the other men.
Falkowski later identified the defendant, Stefan Lord, in court as one of the robbers. She said that she had attended high school with him and recognized him because his eyes were very distinct. She testified she could not say what color they were, but that they were `very clear.' However, on cross-examination, Falkowski admitted that she told police that the two masked men other than Wilson had brown eyes. The record reflects that Lord's eyes are blue. Falkowski also admitted that although she was interviewed several times by police prior to trial, she had never identified Lord as one of the robbers.
About a week after the robbery, police contacted April Sprague regarding a separate incident. She told Detective Ken Crystal of the Edmonds Police Department that she had been present at the robbery of Falkowski's house. Sprague testified at trial that she had dated both Hargrove and Wilson, and had met Lord as a friend of Wilson's prior to the robbery. Sprague testified that on the afternoon before the robbery, she met Wilson at Hargrove's house around 1 p.m. or 2 p.m. and drove them and Hargrove's girlfriend to Bellevue. Sprague stated that at some point later in the evening, they met up with Lord and La'Ryan Holmes in a school parking lot. Holmes and Lord were in another car with a third person. Sprague stated that Wilson made several phone calls on her cell phone looking for marijuana. Sprague stated that the men also made several phone calls and had conversations out of her presence.
Sprague testified that Holmes and Lord got in her car with Wilson, Hargrove, and Hargrove's girlfriend, and that she drove Hargrove and his girlfriend back to Hargrove's home. Sprague testified it was past 9 p.m. when she dropped the two off in Kirkland, and that the group then went back to Bellevue. She stated that Lord then made a call on a cell phone, and they met up with one of his friends, a tall, skinny black man, who was in a car with another woman. Sprague testified that Wilson then asked Sprague to knock on Falkowski's door and ask for marijuana, because he had had a conflict with Falkowski a week earlier. The group then traveled in two cars to Falkowski's house.
Sprague said that she did as she was asked, and that when Falkowski responded that she did not have any marijuana, Lord, Holmes, Wilson, and the fourth man pushed past Sprague and ran into the house. Sprague said that as she ran back to her car, she saw one of the men holding something pointed upward. She stated that `it was really tall to be a finger.' Sprague testified that she heard Falkowski scream.
Sprague stated that she dropped her keys as she ran to her car, and that by the time she found her keys the four men were running toward the two cars. Holmes had two bongs in his hands and jumped into her car. He told her to follow the other car as it drove away, and she did. Sprague stated that eventually the cars stopped, Wilson got back in her car, and Holmes left. Sprague stated that she repeatedly asked Wilson what had happened, but he would not tell her. Sprague stated that she had not known that the robbery was going to take place, and that she just thought they were going to get marijuana from Falkowski.
Detective Crystal of the Edmonds Police Department testified that Sprague told him initially that she accompanied Hargrove and three other men she did not know to Falkowski's home, after Hargrove said that he had an illegal way of getting money fast. Sprague also told him that she waited on the corner while the four men forced their way into the home with guns. She told Detective Crystal that she was `freaked out' and left the area, and then followed the men in her car when they came out of the house. Sprague admitted during trial that she had not initially told Detective Crystal the entire truth about the incident, in that she was trying to protect Wilson. She testified that when she later was interviewed by Detective Johnson from the Bellevue Police Department, she initially told him that Hargrove and Lord were participants, but later confessed that Wilson, not Hargrove, was involved. She also identified Hargrove and Lord in photographs that Detective Johnson showed her.
Detective Johnson testified that Sprague was fairly consistent about what had happened and that her story was inconsistent only with respect to Wilson. Sprague first told him that she spent the evening with Hargrove, Lord, and Holmes, and that Hargrove eventually went home. She said that Lord called Falkowski to get some marijuana and that the group met up with a tall, skinny black man that she did not know by name. She said that she knocked on Falkowski's door and that Lord, Holmes, and the third man knocked her aside and ran in. She said she quickly drove away. Sprague then told Detective Johnson that she did not immediately drive away, but spent time looking for her keys and then followed the men when they drove away in the other car. Sprague then told Detective Johnson that Wilson was involved in the incident. She also admitted that she drove one of the robbers away from the scene of the crime.
Officer David Sanabria, a Bellevue police officer, apprehended Lord on a bus several weeks after the robbery. Officer Sanabria had been advised that same day that Lord was a suspect in a robbery, and around 2 p.m. he saw Lord waiting at a Metro bus stop. The officer followed Lord onto the bus when he boarded. Officer Sanabria found Lord sitting in the far back end of the bus, on the same side of the bus as the bus driver. Lord was sitting slumped over, leaning against a window. When Officer Sanabria said `Hey, Stefan,' Lord responded and put his hands up. The officer testified that Lord stood up and moved away from where he was sitting. Officer Sanabria escorted Lord out of the bus and handcuffed him. The officer stated that the bus drove away before he had a chance to search the area where Lord had been sitting. When Lord asked the officer why he was under arrest, Officer Sanabria told him that it was for investigation of a home robbery. Lord then stated, as if he were talking to himself, `that fat chick.' The record reflects that Falkowski is a heavy woman.
Around 4:15 p.m. the same day as Lord's arrest, the bus driver on the same Metro bus that Lord had boarded reached the end of the line and took a break. At that time, he did a walk-through of the bus. The bus driver said he visually looked for lost items, bending at the waist to see under seats, but that he did not get down on his knees to look under the seats. The driver stated it was possible to miss things during a normal walk-through. Around 5 p.m., a passenger found a revolver under the same seat that Lord had been sitting in, and gave the gun to the driver. The handle of the gun was covered in duct tape. The gun was handed over to the Bellevue Police Department. No fingerprints were found on it.
The defense moved to have the gun excluded as evidence, arguing that it was evidence of Lord's other bad acts under ER 404(b), that there was no link between either the gun and Lord or the gun and the crime, and that it was highly prejudicial. The State argued that the gun was an essential piece of the State's case because whether or not this particular gun was used in the robbery, all witnesses testified that revolver-type guns were used during the robbery and because the gun was found soon after Lord's arrest in the same location where he had been sitting. The court admitted the gun as evidence, ruling that its probative value outweighed its prejudicial effect.
When shown the revolver, Falkowski testified that it looked like one of the guns used during the robbery in that it was a revolver and did not have a clip. Falkowski also testified that the color of the gun was the same, and it had a shorter barrel like the revolvers used in the robbery that were not held to her head. Although the revolver admitted into evidence had duct tape around the handle, Falkowski testified that she did not remember whether the guns used during the crime had any distinctive marks.
Lord and Holmes were tried together. Holmes did not testify. Lord, his aunt Marcia Douglas, and his mother Dorian Ameling, testified at trial in Lord's defense and claimed that Lord could not have been present during the robbery because he had been with them. Douglas, Ameling, and Lord stated that at 10:30 p.m. on January 5, 2002, the evening before the robbery, a friend dropped Lord off at Douglas's house. They testified that Lord had dinner with various family members, including Douglas and Ameling. Douglas and Ameling testified that because it was the first weekend after the holidays, Douglas had made fried dumplings, Lord's favorite dish.
All three testified that the family played cards, and that Lord visited with cousins and napped. Ameling and Lord stated that they stayed at Douglas's house until they left together for home, around 2:30 a.m. All three asserted that Lord never left his aunt's house from 10:30 p.m. until 2:30 a.m. Douglas asserted that she was sure of the date because she made fried dumplings only once during the year, on the first weekend after the holidays, and had noted the event in her day planner. When shown the revolver recovered from the bus, Lord testified that he had never seen the gun before, and that he had never seen a revolver with duct tape on it. Despite his alibi defense, Lord was convicted as charged, and he appeals.
DISCUSSION I. Admission of Gun as Evidence
Lord first argues that the trial court erred in admitting the gun as evidence because it was irrelevant and prejudicial. Evidence is relevant and admissible if it has any `tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' ER 401. Generally, there must be a logical nexus between the evidence and the fact to be established. State v. Peterson, 35 Wn. App. 481, 484, 667 P.2d 645 (1983) (citing State v. Whalon, 1 Wn. App. 785, 791, 464 P.2d 730 (1970)). Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. ER 403.
This court reviews a trial court's decisions regarding the admissibility of evidence under an abuse of discretion standard. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). A trial judge has wide discretion in balancing the probative value of evidence against its prejudicial impact. Stenson, 132 Wn.2d at 702 (citing State v. Rivers, 129 Wn.2d 697, 710, 921 P.2d 495 (1996). A trial court does not abuse its discretion unless its decision is manifestly unreasonable or based upon untenable grounds or reasons. Stenson, 132 Wn.2d at 701 (citing State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995)).
The jury was properly informed that the facts that were of consequence were whether the charged crimes were committed, whether Lord was a participant in the commission of the crimes, and whether any of the participants were armed. Lord argues that the evidence that a gun was found near where Lord had been seated on a bus, several weeks after the incident, did not make any of these facts of consequence more or less probable. No fingerprints were found on the revolver. Further, although the gun was found close in time to when Lord was arrested, and close in location to where Lord was sitting, Lord argues that there was no evidence that the gun was logically connected to the crime for which he was charged.
RCW 9A.56.200(1)(a) (person is guilty of robbery in the first degree if during the commission of the robbery or of immediate flight therefrom he or she is armed with a deadly weapon or displays what appears to be a firearm or other deadly weapon); RCW 9A.56.190 (a person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will or 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); RCW 9A.52.020 (a person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle).
We think the evidentiary issue is a close one. The only nexus between this particular gun and the robbery is Lord himself, and considerable time had elapsed between the robbery and the finding of the gun. On the other hand, Falkowski testified that the gun was similar to at least one of the guns used during the robbery, and Sprague identified Lord as one of the robbers. In these circumstances, we might not have admitted the gun into evidence. But that is not the standard of review. A trial court could rationally conclude that the nexus between Lord and the robbery and Lord and the gun was sufficient to provide a nexus between the gun and the robbery, in that the gun was similar in appearance to a gun used during the robbery and Sprague testified that Lord was one of the men who forced his way into Kowalski's home. We will not substitute our judgment for that of the trial court on this close evidentiary issue.
The prosecutor argued in closing that the jury could infer that Lord was one of the men involved in the robbery because the police found his gun on the bus and it looked like one of the guns used in the robbery. The prosecutor said, `I guess things are ironic that for some weird reason the gun used in the robbery happens to end up under the very seat where the defendant was seated an hour and a half to two hours before that.' 8 Report of Proceedings at 27.
In light of this argument, if the gun were the only evidence potentially linking Lord to the robbery, we would agree with Lord that the prejudice outweighed the relevance of the gun as evidence. But Sprague identified Lord as one of the robbers, and she saw something being pointed that was too big to be a finger as the men forced their way into Falkowski's house. Falkowski testified that at least two of the intruders were armed, and that this gun looked like a gun used during the robbery that was different from the one pointed at her head by the tall, skinny intruder.
The crucial issue at trial was not whether Falkowski was robbed or whether one or more of the intruders was armed, but whether Lord was one of the intruders. Although Lord testified at trial that he was not one of the robbers and that he had never seen the gun before, his primary defense at trial was his alibi. We think it unlikely that the jury rejected the alibi defense based only on the proximity of the gun to the seat on the bus where Lord had been seated when he was placed under arrest. Put another way, if the trial court had rejected the gun as evidence, we doubt that this would have influenced the jury to find Lord's alibi evidence to be credible. Thus, we will not second-guess the trial court's determination that the probative value of the gun outweighed its prejudicial effect.
II. WPIC 6.05
Lord next asserts that the court erred in failing to give his proposed jury instruction based on WPIC 6.05, with respect to Sprague's testimony. WPIC 6.05 is a cautionary instruction regarding accomplice testimony and provides:
The testimony of an accomplice, given on behalf of the plaintiff, should be subjected to careful examination in the light of other evidence in the case, and should be acted upon with great caution. You should not find the defendant guilty upon such testimony alone unless, after carefully considering the testimony, you are satisfied beyond a reasonable doubt of its truth.
WPIC 6.05. Lord asserts because the State relied heavily on Sprague's testimony, and because Sprague was an accomplice to the robbery, it was error for the court to refuse this instruction.
The comment to WPIC 6.05 provides that use of the cautionary instruction is mandatory when the State relies solely on uncorroborated testimony of an accomplice. WPIC 6.05, Comment (citing State v. Willoughby, 29 Wn. App. 828, 630 P.2d 1387 (1981)).
Jury instructions are sufficient if they permit each party to argue its theory of the case, are not misleading and, when read as a whole, properly inform the trier of fact of the applicable law. State v. Edwards, 84 Wn. App. 5, 141-6, 924 P.2d 397 (1996) (court did not err in refusing the defendant's jury instructions where they did not accurately state the law and added elements to the charged crime) (citing Hyatt v. Sellen Constr., Co., 40 Wn. App. 893, 700 P.2d 1164 (1985)). A party is entitled to an instruction only if the proposed instruction accurately states the law and substantial evidence supports giving the proposed instruction. Edwards, 84 Wn. App. at 14. A court's refusal to give a requested jury instruction is reviewed for abuse of discretion. Edwards, 84 Wn. App. at 14 (citations omitted). Further, when determining if the evidence at trial was sufficient to support the giving of an instruction, the appellate court views the supporting evidence in the light most favorable to the party requesting the instruction. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000).
Here, the trial court ruled as a matter of law that Sprague was not an accomplice, and declined to give the cautionary instruction. Lord claims this was error because the facts were sufficient to show the jury that Sprague was an accomplice in at least two ways (1) by enticing Falkowski to open the door so the men could gain entry; and (2) by assisting as a get-away driver. Lord argues that a rational juror could have concluded that Sprague knocked on the door with full knowledge that she was assisting a robbery and that she purposefully waited in her car to secure a quick get-away. However, even viewing the evidence in a light most favorable to Lord, it does not support either of these inferences.
A person is an accomplice if, with knowledge that it will promote or facilitate the commission of the crime, he aids or agrees to aid such other person in planning or committing it. RCW 9A .08.020(3)(a)(ii). A person's physical presence and assent alone are insufficient to establish accomplice liability. In re Welfare of Wilson, 91 Wn.2d 487, 492, 588 P.2d 1161 (1979); State v. Amezola, 49 Wn. App. 78, 741 P.2d 1024 (1987). See also, State v. Landon, 69 Wn. App. 83, 91, 848 P.2d 724 (1993) (mere presence at a shooting not enough to establish accomplice liability without evidence of knowing aiding and abetting). A person must knowingly aid or agree to aid the commission of the crime to be an accomplice to the crime through assistance by words, acts, encouragement or support. Amezola, 49 Wn. App. at 88.
There is no evidence that Sprague knew the men intended to take marijuana from Falkowski by force. The evidence showed that Sprague was asked to knock on a door and ask to purchase marijuana because Wilson's relationship with Falkowski was strained. The only evidence that Sprague may have known that the men intended something illegal came from Officer Crystal who testified that Sprague initially told him that Hargrove said he had an illegal way of getting money fast. Sprague later admitted that Hargrove was not involved and, although she was aware that the men wanted marijuana, there was no indication that she knew they intended to claim it by force. She also testified that although the men made several phone calls prior to the robbery, she was not aware of the context of those conversations that were made outside her earshot.
The evidence also showed that although Sprague initially claimed she did not drive any of the men away from the robbery, she in fact did so, when one of them jumped into her car and ordered her to follow the other car. This man was not Wilson, with whom she was most familiar, and when Wilson did move to her vehicle Sprague asked him numerous times what had happened. At most, the evidence might support an inference that Sprague learned of the robbery at some point after she drove away from the victim's house, but not before or during the robbery. Because the evidence presented at trial did not show that Sprague either knew of the robbery before it happened, or intended to assist in that specific crime, the evidence did not support Lord's theory that Sprague acted as an accomplice. Lord's arguments to the contrary amount to speculation. Thus, the court did not err in refusing to give a cautionary accomplice testimony instruction.
Finally, Lord assigned error in his opening brief to the trial court's failure to enter the findings of fact and conclusions of law on its CrR 3.5 hearing that are necessary for proper appellate review. CrR 3.5; State v. Commodore, 38 Wn. App. 244, 250, 684 P.2d 1364 (1984). But the trial court has since remedied this error by filing findings and conclusions on April 3, 2003. Lord has not since filed a reply brief asserting either that the late filing prejudiced him, or that the findings and conclusions were tailored to meet the issues raised on appeal. State v. Byrd, 83 Wn. App. 509, 512, 922 P.2d 168 (1996). Thus, we need not address this contention.
In sum, although the evidentiary issue is close, we cannot conclude that it was an abuse of discretion to admit the gun into evidence, whether based on relevance or prejudice. And the trial court was not required to give the cautionary instruction in response to the speculative defense theory that Sprague was an accomplice. Accordingly, we affirm Lord's conviction.
COLEMAN and AGID, JJ., concur.