State v. Farnsworth

¶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.

Worswick, 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 But I agree with the majority as to all other issues decided in the unpublished portion of its opinion.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).

The majority acknowledges that the teller was “justifiably” scared. Majority at 312.

The majority reads Roberts as standing for an entirely different proposition: that the State must show the accomplice’s knowledge of each element of the principal’s crime. But Roberts expressly rejected this proposition; instead, it adhered to the rules of State v. Davis, 101 Wn.2d 654, 682 P.2d 883 (1984), and State v. Rice, 102 Wn.2d 120, 683 P.2d 199 (1984). Roberts, 142 Wn.2d at 511-13.