Opinion
No. 61061-9-I.
December 29, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-1-04060-5, Jeffrey M. Ramsdell, J., entered November 30, 2007.
Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.
Based on evidence that David Roe and others burglarized, kidnapped, and robbed a 75-year-old man with a seizure disorder, a jury convicted him of first degree robbery, first degree kidnapping, first degree burglary, and possession of methamphetamine. Although the jury also found that the victim was particularly vulnerable, the court declined to impose an exceptional sentence and instead imposed standard range sentences totaling 378 months. Roe appeals, challenging the information, his robbery conviction, and various aspects of his sentence. We affirm in part and reverse and remand in part.
Roe does not challenge any aspect of his conviction and sentence for possession of methamphetamine.
Roe contends, and the State concedes, that his robbery conviction must be reversed because the court instructed the jury on an uncharged alternative means. When an offense may be committed by alternative means, it is error to instruct the jury on a means that was not alleged in the information regardless of the range of evidence admitted at trial. State v. Chino, 117 Wn. App. 531, 540, 72 P.3d 256 (2003); State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332 (1988). Such errors are prejudicial "if it is possible that the jury might have convicted the defendant under the uncharged alternative." State v. Doogan, 82 Wn. App. 185, 189, 917 P.2d 155 (1996). Reversal is required unless it affirmatively appears from the record that the error was harmless. Bray, 52 Wn. App. at 34-35; Chino, 117 Wn. App. at 540.
Here, the State charged Roe with first degree robbery based on the allegation that he "displayed what appeared to be a firearm[.]" But the jury instructions instead set forth the "armed with a deadly weapon" means of committing the offense. Roe was thus convicted of an uncharged means of committing first degree robbery, and the State correctly concedes this error. The State further concedes that "[t]he record does not affirmatively establish that the error was harmless." We accept this concession, reverse the conviction, and remand for further proceedings.
Roe next contends, and the State again concedes, that the firearm enhancements on the kidnapping and burglary convictions must be reversed because the court's instructions only defined "deadly weapon," failed to define "firearm," and could be read as permitting the jury to return a "yes" verdict on the firearm enhancement if they found he was armed with a "deadly weapon." See State v. Recuenco, 163 Wn.2d 428, 439, 180 P.3d 1276 (2008) (jury must be given instruction defining "firearm" to properly evaluate whether the facts support a firearm enhancement); State v. Williams, ___ Wn.App. ___, 195 P.3d 578 (2008) (deadly weapon finding is not enough to justify a firearm sentencing enhancement). The parties agree that the appropriate remedy is to remand for vacation of the firearm enhancements and imposition of deadly weapon enhancements on the affected counts. We accept the concession on this issue as well and remand for imposition of deadly weapon enhancements.
Next, Roe argues that the trial court abused its discretion in ruling that the kidnapping and burglary encompassed the same criminal conduct. The State agrees, but contends the decision can still be sustained because the trial court had discretion under the burglary anitmerger statute, RCW 9A.52.050, to count the offenses separately. Alternatively, the State asks us to remand for the trial court to exercise its discretion under the anitmerger statute. We again accept the concession, but because nothing in the record indicates that the trial court exercised its discretion under the antimerger statute, we leave application of that statute to the court's discretion on remand.
The State also points out that the court's ruling is inconsequential in terms of Roe's standard range, but has significance in determining whether the deadly weapon enhancements run concurrently or consecutively. The question of whether firearm enhancements must be imposed consecutively even though they encompass the same criminal conduct is currently pending before the State Supreme Court in State v. Mandanas, 139 Wn. App. 1017 (2007), review granted, 163 Wn.2d 1021 (2008) (argued October 14, 2008).
For the first time on appeal, Roe contends the information was defective for failing to adequately set forth the "vulnerable victim" aggravating factor. The information alleged that Roe "knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance, under the authority of RCW 9.94A.535(3)(b)." Roe contends, and the State concedes, that the information should have also stated that the victim's vulnerability was a "substantial factor" in the offense. The State argues, however, that the information was sufficient under the test applied to charging document challenges asserted for the first time on appeal.
The "substantial factor" language is a common-law element of the vulnerable victim aggravating factor. State v. Suleiman, 158 Wn.2d 280, 291-92, 143 P.3d 795 (2006).
The State did not request an exceptional sentence below and the trial court declined to impose one despite the jury's finding of an aggravating factor. We decline, in these circumstances, to issue what could well be an advisory opinion on this issue. See State v. Eggleston, 164 Wn.2d 61, 76-77, 187 P.3d 233 (2008) (declining to reach issue concerning proceedings on remand since it was entirely speculative whether the issue would arise); State v. Davis, 163 Wn.2d 606, 184 P.3d 639 (2008) (also declining to reach issue that might not arise on remand). If the State seeks an exceptional sentence on remand, and if the trial court is inclined to impose such a sentence, the adequacy of the information can be taken up at that time.
Finally, the parties agree, and we concur, that the judgment and sentence must be amended to reflect the agreed dismissal of the possession of stolen property charge.
We reverse Roe's robbery conviction and remand for further proceedings on that count. We also reverse the enhancements on the kidnapping and burglary counts and remand for resentencing and amendment of the judgment and sentence to reflect the agreed dismissal. Roe's convictions are otherwise affirmed.