FILED
AUGUST 15, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34109-7-111
Respondent, )
)
v. )
)
JOHN MARK HAMIL TON, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. -John Hamilton appeals from a conviction at bench trial for
attempted second degree robbery, arguing that the court permitted improper evidence and
applied an incorrect standard in assessing the elements of the crime. We affirm.
FACTS
Mr. Hamilton entered a convenience store that he frequented and argued with the
clerk, Ms. K.K. The incident was captured on surveillance video without audio and led
to a charge of attempted first degree robbery while armed with a deadly weapon. The
two participants related significantly different versions of the encounter at a bench trial in
the Spokane County Superior Court.
K.K. is a native Punjabi speaker who speaks little English. She indicated that a
man came up to the counter holding a glass bottle and said he was there to do a robbery.
No. 34109-7-III
State v. Hamilton
She took off her rings and placed them on the counter, and then fell to the floor trying to
protect herself. When the man came around to her side of the counter, she got up and
fled the building, running to a next door neighbor. The neighbor testified that K.K.
frantically beat on his door and reported a robbery, which he called in to the police. The
two returned to the convenience store and saw a man, whom he identified as the
defendant, rummaging around. When the man saw the two watching him, he dropped the
lottery tickets he was holding and left the building.
Mr. Hamilton told the court that he had previously given K.K. a $400 ring in
exchange for $20 worth of store merchandise and had come back to reclaim the ring. He
offered $40 for it. When K.K. turned the offer down, he angrily told her she was robbing
him by demanding more money. When she fell to the floor, he tried to calm her down,
but after she fled he grabbed some lottery tickets in anger, but dropped them when he
realized what he had done.
His testimony was undermined by the recording of a telephone call he made while
in the jail. In part, that conversation recited Mr. Hamilton stating:
Well, yeah, we don't want to hear what I'm saying, and laughs .... See
about audio because audio would be pretty damning. It wouldn't be good.
I don't know why they wouldn't have audio, but I hope they don't.
Report of Proceedings (RP) at 268-269.
The court's findings report much of what the judge saw on the video. Those
findings indicate that Mr. Hamilton approached the counter holding a glass bottle by the
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neck upside down. After setting it down on the counter, he again picked it up after the
argument began while standing directly in front of K.K. The next finding states that
K.K., "who testified that she was in fear for her safety and perplexed by the defendant's
actions, lies down on the floor behind the counter in fear and covers her head with her
hand." Clerk's Papers (CP) at 82.
Over objection, the detective was allowed to testify to observations he made while
reviewing the defendant's actions on the video. The court permitted the testimony due to
the detective's experience and training. In response to a concern that the officer's
testimony would lead to an expression of an opinion that the defendant was guilty, the
court responded:
Obviously as to whether someone finally commits a crime or not,
that is in this case the Court's decision or otherwise the jury's decision, and
goes to the ultimate facts. No one can express an opinion about guilt.
RP at 182. During cross-examination, defense counsel encouraged the detective, whom
he knew, to be "candid" about the information he was seeking when he interviewed the
defendant and asked the detective if he was seeking evidence or "looking for statements
from Mr. Hamilton that might incriminate him?" The detective responded:
Both. I was looking for the truth. And what-His physiological
characteristics during of the interview led me to believe that he was doing
one of two things: Absolutely lying and hiding something from me, or
contemplating not telling me something.
RP at 286-287. There was no objection to the response.
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The court recessed for two days to review the video and return a decision. The
court delivered the verdict in open court, stating the facts it found and the elements of
attempted first degree robbery that the judge found proved beyond a reasonable doubt.
The court determined that the glass bottle was not wielded as a deadly weapon and
determined that attempted first degree robbery was not proved. However, the court
concluded that all of the elements of attempted second degree robbery had been
established and found Mr. Hamilton guilty of that included offense. RP at 427-434. In
his summary of the element of threatened use of force, the court noted several times that
K.K. "feared" the defendant and his actions, or that she was "afraid." RP at 431-432.
The court imposed a sentence at the midpoint of the standard range. Findings
required by CrR 3.5 and CrR 6.1 were promptly filed. Mr. Hamilton then timely
appealed to this court. A panel considered the case without argument.
ANALYSIS
This appeal presents two issues for our consideration. First, Mr. Hamilton
contends that the trial court's observations concerning the victim's "fear" indicated that
the court applied a subjective standard to this element. He next argues that the court
erred in permitting the detective to express opinions during testimony. We consider the
contentions in the order stated.
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Consideration of Victim's Fear
The court's observations considering the victim's fear did not mean that the court
misapplied that evidence to the relevant law. The court's oral remarks and the written
findings both establish that the court properly applied the evidence to the law.
The crime of robbery is committed when one "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." RCW
9A.56.190. The "force or fear must be used to obtain or retain possession of the
property," and the "degree of force is immaterial." Id. The "force or fear" element is
adjudged by the reasonable person standard. State v. Witherspoon, 180 Wn.2d 875, 884,
329 P.3d 888(2014). That standard is "whether an ordinary person in the victim's
position could reasonably infer a threat of bodily harm from the defendant's acts." Id.
"Following a bench trial, appellate review is limited to determining whether
substantial evidence supports the findings of fact and, if so, whether the findings support
the conclusions oflaw." State v. Homan, 181 Wn.2d 102, 105-106, 330 P.3d 182 (2014)
(citing State v. Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005)). '" Substantial
evidence' is evidence sufficient to persuade a fair-minded person of the truth of the
asserted premise." Id. at 106. This court must defer to the finder of fact in resolving
conflicting evidence and credibility determinations. State v. Camarillo, 115 Wn.2d 60,
71, 794 P.2d 850 (1990). The trial court's oral remarks may be used to clarify formal
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findings, but they are not themselves findings. State v. Kingman, 77 Wn.2d 5 51, 552,
463 P.2d 638 (1970). Allegedly inconsistent remarks cannot be used to impeach the
written findings. Johnson v. Whitman, 1 Wn. App. 540, 546, 463 P.2d 207 (1969).
Nothing in the court's written findings suggest it applied a subjective standard in
assessing the fear element. Conclusion of law E states that the court found beyond a
reasonable doubt that "the taking was against the person's will by the defendant's use or
threatened use of immediate force, violence or fear of injury to that person." CP at 84.
Nothing there suggests that the conclusion was based on the subjective state of the
victim. The only relevant written finding of fact, J, states in its review of the video that
K.K. "was in fear for her safety and perplexed by the defendant's actions, lies down on
the floor behind the counter in fear and covers her head with her hand." CP at 82.
These notations simply suggest the factual truth that the victim was in fear of the
defendant. They do not demonstrate that the court's conclusion oflaw was based on a
misunderstanding of its obligations. None of the parties argued a subjective standard to
the court and nothing in the way the case was tried suggested that the victim's actual fear
satisfied the element of the crime. Instead, the remarks all seem directed to factually
describing the offense.
Nothing in the record suggests the court misapplied the law in its deliberations.
Accordingly, this issue is without merit.
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Detective's Testimony
Mr. Hamilton also argues that the trial court erroneously admitted into evidence
improper opinion testimony by the detective. There was no error.
Well understood standards govern our review of this claim. With respect to the
admission of evidence, trial court judges have great discretion and will be overturned
only for manifest abuse of discretion. State v. Luvene, 127 Wn.2d 690, 706-707, 903
P .2d 960 ( 1995). Discretion is abused where it is exercised on untenable grounds or for
untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Additionally, in a bench trial, it is presumed that the judge followed the law and
considered evidence solely for proper purposes. E.g., State v. Adams, 91 Wn.2d 86, 93,
586 P.2d 1168 (1978); State v. Miles, 77 Wn.2d 593, 601, 464 P .2d 723 ( 1970); State v.
Bell, 59 Wn.2d 338,360,368 P.2d 177 (1962).
However, it invades the province of the trier-of-fact for a witness to express an
opinion that a witness is lying or that a defendant is guilty. State v. Perez-Valdez, 172
Wn.2d 808, 817, 265 P.3d 853 (2011) (lying); State v. Black, 109 Wn.2d 336, 348, 745
P.2d 12 (1987) (guilt). It is the trier-of-fact's obligation to determine credibility and
decide guilt or innocence.
Mr. Hamilton contends that the detective's testimony violated both of these
prohibitions. With respect to the answer he solicited on cross-examination with the
request that the detective be "candid" about the interview with Mr. Hamilton, the invited
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error doctrine precludes review of the unchallenged answer. That doctrine prohibits a
party from contributing to an error in the trial court and then trying to take advantage of
that error on appeal. E.g., State v. Pam, 101 Wn.2d 507,511,680 P.2d 762 (1984),
overruled on other grounds by State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995); State
v. Studd, 137 Wn.2d 533, 545-549, 973 P.2d 1049 (1999). Having requested the candid
response, and apparently being satisfied at trial with that answer, he cannot now complain
that the answer constituted prejudicial error.
Mr. Hamilton also argues that the detective was erroneously allowed to give an
indirect opinion that he was guilty by describing actions on the video that were consistent
with those of a robber. Although this argument raises legitimate concerns about the
proper scope of expert testimony, it is not persuasive in this bench trial. The trial judge
expressly told the parties that a witness could not opine on the topic of guilt and that he
would be making that determination. RP at 182. The trial judge clearly was aware of the
potential dangers of the situation and restricted the testimony to its proper reach. Under
these circumstances, there was no danger of any improper opinion testimony swaying the
verdict.
Appellant has not overcome the presumption that the trial court considered
evidence solely for proper purposes. Accordingly, he has not established error and the
conviction is affirmed.
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Mr. Hamilton also requests that we not award costs on appeal to the State. In light
of Mr. Hamilton's significant debt for child support and previous legal financial
obligations, we grant his request and deny costs on appeal.
Affirmed. No costs will be awarded.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Lawrence-Berrey, A.CJ.
j
Pennell, J.
II
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