State v. Tvedt

¶1 Petitioner Ronald Tvedt contends that his convictions on four counts of first degree robbery violate the state and federal constitutional proscriptions against double jeopardy. This challenge requires this court to decide what constitutes the unit of prosecution for robbery. We conclude that the unit of prosecution for robbery is each taking of personal property from a person or from his or her presence against the person’s will through the use or threat of force, violence, or injury to a person or property, regardless of the number of items taken. A single taking can result in a conviction on one count of robbery, regardless of the number of persons present. Applying this definition of the unit of prosecution, Tvedt was properly convicted on four counts of robbery. Accordingly, we affirm the Court of Appeals’ decision upholding the convictions, although our analysis differs significantly.

Madsen, J.

FACTS

¶2 Tvedt was charged with 12 counts of first degree robbery as a result of events occurring in September 2000. He pleaded guilty to counts I-VII and count XII. As to the remaining counts, counts VIII through XI, Tvedt “stipulate [ed] to facts sufficient for a finding of guilty.” Clerk’s Papers at 24. He contends that his double jeopardy rights were violated by his convictions on these counts.

f 3 According to the stipulated facts, on the morning of September 23, 2000, Tvedt entered an Exxon service station in Pierce County where two people were present, owner Monty Younce and cashier Addie Schaefer. Schaefer was behind the counter, and Younce was in the office. After Tvedt selected and brought an item to the counter, he quickly went behind the counter, pushed a knife blade into Schaefer’s stomach, and then pushed her into the office. He forced Younce and Schaefer to lie face down on the floor. While brandishing the knife, Tvedt demanded money. Younce told Tvedt the only money on hand was in a deposit bag, which Tvedt stole. Tvedt then ordered Younce to give him the keys to Younce’s truck, which Younce did. Tvedt left the station in the truck. The truck was later found abandoned nearby.

¶4 On the morning of September 25, 2000, Tvedt walked into a Texaco service station in Pierce County where store manager Jack Shepherd and assistant manager Teresa Piper were behind the counter. Shepherd was removing money from the safe. After selecting some food items, Tvedt suddenly drew a knife, went behind the counter, and stuck the knife into Shepherd’s left side. He prodded Shepherd and Piper toward the back storage area, forced them to lie on the floor, and demanded the weekend receipts. After Piper told Tvedt the money was in a paper bag next to the safe, Tvedt stole the money and also stole Shepherd’s cellular telephone. He then left the service station.

¶5 The State charged Tvedt with four counts of first degree armed robbery based on these events. In relevant part, count VIII charged Tvedt with taking the cash from or from the presence of Younce and Schaefer. Count IX charged Tvedt with robbery based on taking Younce’s truck. Count X charged Tvedt with taking cash from or from the presence of Shepherd and Piper. Count XI charged Tvedt with robbery based on taking Shepherd’s cellular telephone.

¶6 The trial court found Tvedt guilty on all four counts. At the sentencing hearing, Tvedt agreed that the State properly charged him with four counts of robbery but argued that only two deadly weapons enhancements were proper. The court rejected this argument, ruling that the State properly sought four weapons enhancements in connection with the Exxon and Texaco robberies.

¶7 Tvedt appealed, arguing for the first time that the four convictions on counts VIII-XI violated the double jeopardy prohibition.1 The Court of Appeals affirmed the convictions in a split decision. State v. Tvedt, 116 Wn. App. 316, 65 P.3d 682 (2003). We granted discretionary review. State v. Tvedt, 150 Wn.2d 1009 (2003).

ANALYSIS

¶8 Tvedt claims that he should be convicted on only one count of robbery for his acts at each service station because he engaged in only one course of conduct at each. The State maintains that a conviction on one count of robbery is proper for each person whose will is overcome by the use or threatened use of force, i.e., each person placed in fear and from whom or from whose presence property is taken. Neither position reflects the legislature’s definition of robbery.

¶9 The double jeopardy clause of the United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. The Washington State Constitution provides that “[n]o person shall be . . . twice put in jeopardy for the same offense.” Const, art. I, § 9. The two clauses provide the same protection. In re Pers. Restraint of Davis, 142 Wn.2d 165, 171, 12 P.3d 603 (2000).

¶10 “Double jeopardy principles protect a defendant from being convicted more than once under the same statute if the defendant commits only one unit of the crime.” State v. Westling, 145 Wn.2d 607, 610, 40 P.3d 669 (2002) (citing State v. Adel, 136 Wn.2d 629, 634, 965 P.2d 1072 (1998)). Accordingly, in order to resolve whether double jeopardy principles are violated when a defendant is convicted of multiple violations of the same statute, a court must determine what “unit of prosecution” the legislature intends to be the punishable act under the statute. Westling, 145 Wn.2d at 610; Davis, 142 Wn.2d at 172; State v. Tili, 139 Wn.2d 107, 113, 985 P.2d 365 (1999); Adel, 136 Wn.2d at 634. The unit of prosecution for a crime may be an act or a course of conduct. United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 225-26, 73 S. Ct. 227, 97 L. Ed. 260 (1952); State v. Root, 141 Wn.2d 701, 710, 9 P.3d 214 (2000); Adel, 136 Wn.2d at 634.

¶11 In determining legislative intent as to the unit of prosecution, we first look to the relevant statute. The meaning of a plain, unambiguous statute must be derived from the statutory language. Westling, 145 Wn.2d at 610; Tili, 139 Wn.2d at 115. However, “ ‘we are not allowed to look for an intent that reasonably could be imputed to [the legislature], nor are we permitted to construe [an] Act in a way that we believe will best accomplish evident statutory purpose.’ ” United States v. Keen, 96 F.3d 425, 433 (9th Cir. 1996) (quoting Brown v. United States, 623 F.2d 54, 59 (9th Cir. 1980)). Rather, as the Supreme Court has held,

when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication.

Universal C.I.T. Credit Corp., 344 U.S. at 221-22. Therefore, if the legislature fails to define the unit of prosecution or its intent is unclear, under the rule of lenity any ambiguity must be “ ‘resolved against turning a single transaction into multiple offenses.’ ” Adel, 136 Wn.2d at 635 (quoting Bell v. United States, 349 U.S. 81, 84, 75 S. Ct. 620, 99 L. Ed. 905 (1955)).

¶12 RCW 9A.56.190 provides that “[a] person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will 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.” Under the plain language of the statute, the crime of robbery requires that there be a taking of property and that the taking be forcible and against the will of the person from whom or from whose presence the property is taken. By describing the crime of robbery as it did, the legislature established an offense which is dual in nature—robbery is a property crime and a crime against the person.

¶13 There are several indications that the legislature intended that the unit of prosecution include both characteristics. Initially, the language of the statute clearly shows that the legislature was concerned with the offense as a property crime, as noted. Additionally, RCW 9A.56.190 requires a taking that must be accomplished “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.” (Emphasis added.) The statute does not merely provide that the force must be directed at a person. It also provides that the use or threat of force, violence, or fear of injury may be directed to property.

¶14 Moreover, the legislature classified robbery with other property offenses. Laws of 1975, 1st Ex. Sess., ch. 260, at 841, 846 (RCW 9A.56.200). Offenses included in the chapter, as codified in 1975, are theft, unlawful issuance of checks, taking motor vehicle without permission, theft of livestock, theft presumed from the failure to return leased items, extortion, possession of stolen property, obscuring the identity of a machine, and robbery. Laws of 1975, 1st Ex. Sess., ch. 260, RCW 9A.56.010-.210. The legislature classified robbery with property crimes, indicating a focus on the nature of robbery offenses as crimes against property.2

¶15 But it is equally apparent that the legislature intended that the unit of prosecution for robbery encompass its character as a crime against the person. The plain language of RCW 9A.56.190 shows that the legislature was concerned with the risks that actual and threatened force, violence, and injury entail, and with the nature of the defendant’s conduct in achieving a taking. A forcible taking must occur, against the will of the person from whom or from whose presence the property is taken. The legislature thus clearly also described a crime against persons as well as against property.

¶16 The language of RCW 9A.56.190 shows that the legislature’s intent was to define the unit of prosecution in terms of a taking of personal property and in terms of an offense against the person from whom or in whose presence and against whose will the property is forcibly taken. The unit of prosecution need not be defined by only a single characteristic or element of a crime and the legislature has not done so. For example, in Westling we addressed the unit of prosecution for second degree arson damaging automobiles and other motor vehicles. We noted that RCW 9A.48.030(1) refers, in relevant part, to the causing of “a fire” that damages “any automobile.” Westling, 145 Wn.2d at 611. Because “ ‘any’ means ‘every’ and ‘all,’ ” we concluded that one conviction is appropriate where one fire damages one or more automobiles, i.e., by use of the word “any,” the statute speaks in terms of “every” and “all” automobiles damaged by the one fire. Westling, 145 Wn.2d at 611-12 (quoting State v. Smith, 117 Wn.2d 263, 271, 814 P.2d 652 (1991)). Thus, both (1) the causing of “a” fire and (2) the damaging of property, whether one item or more than one, define the unit of prosecution. Westling, 145 Wn.2d at 611-12. Similarly, in Root, 141 Wn.2d 701, we held that the unit of prosecution for sexual exploitation of a minor under RCW 9.68A.040 is (1) each photo session (2) per minor involved in each session. Similar to the analyses in Westling and Root, we conclude that the unit of prosecution in this case entails more than a single characteristic of the offense.

¶17 In any event, even if we believed that the unit of prosecution must be identified by a single factor, we could not choose one or the other in this case, given the language of the statute and its placement in the criminal code. Thus, if it were necessary to identify one and only one aspect of a crime as the unit of prosecution, we would be compelled to apply the rule of lenity in favor of the defendant.

¶18 Further, we do not agree with Tvedt that the unit of prosecution for robbery is a course of conduct. By defining the offense in terms of a forcible taking of property from or from the presence of another, the legislature intended that one can be convicted of robbery for each forcible taking from a separate person. We implicitly recognized this intent when we sustained convictions on two counts of robbery in State v. Rupe, 101 Wn.2d 664, 693, 683 P.2d 571 (1984) on the ground that the defendant took cash from the tills of each of two tellers, each of whom was individually responsible for the money in her till and had control and possession of that money.

¶19 We also do not agree with Tvedt’s assertion that the Court of Appeals defined the unit of prosecution to mean that multiple convictions for robbery may be sustained based on the number of items of property taken from or from the presence of one person—for example, three convictions of robbery if a watch, wallet, and ring are taken at the same time from the same person. Tvedt mischaracterizes the court’s holding. The Court of Appeals properly rejected the premise that the number of robberies can be based merely on the number of items taken. Tvedt, 116 Wn. App. at 321-22. The robbery statute does not support the premise that the number of items taken establishes the number of convictions that may be obtained.

¶20 Nor do we agree with the State’s argument that the unit of prosecution is defined by the number of persons placed in fear. Nearly a century ago this court held that a conviction for robbery requires that the person from whom or in whose presence the property is taken have an ownership or representative interest in the property or have dominion and control over it. State v. Hall, 54 Wash. 142, 143-44, 102 P. 888 (1909). The court rejected the argument that a conviction could be upheld where “title was not alleged in the person robbed, nor is any connection shown or alleged between the person robbed and the property taken.” Hall, 54 Wash, at 143. The robbery statute then in effect was in relevant part essentially the same as the present statute. Compare Code of 1881, § 829 with RCW 9A.56.190.3 Thus, in order for a robbery to occur, the person from whom or from whose presence the property is taken must have an ownership, representative, or possessory interest in the property. Hall, 54 Wash, at 143-44; see also State v. Latham, 35 Wn. App. 862, 864-66, 670 P.2d 689 (1983); see, e.g., Rupe, 101 Wn.2d at 693.

¶21 Accordingly, the unit of prosecution for robbery is each separate forcible taking of property from or from the presence of a person having an ownership, representative, or possessory interest in the property, against that person’s will.

¶22 We next turn to the Court of Appeals’ conclusion that where a business’s property is taken from or from the presence of multiple employees having joint control over the property, a conviction on a count of robbery may be sustained for each employee. In reaching this conclusion, Division Two of the Court of Appeals disagreed with Division One’s constructions of the robbery statute in State v. Molina, 83 Wn. App. 144, 920 P.2d 1228 (1996) and State v. Johnson, 48 Wn. App. 531, 740 P.2d 337 (1987). In Molina, the court held that taking property from one cash register in the presence of two employees constituted only one robbery. In Johnson, the court held that only one robbery occurred where the defendant took property from the presence of two clerks in a store.

¶23 Initially, we note that the Court of Appeals upheld the convictions from the Exxon station robberies based on the taking of cash from the presence of an employee and the taking of the truck keys from the owner, and upheld the convictions from the Texaco station robberies based on the taking of cash from the presence of one employee and the taking of the cell phone from the other. However, Division Two of the Court of Appeals went out of its way in this case to expressly disagree with Division One’s construction of the robbery statute, and we accordingly address the matter to avoid possible confusion resulting from the divergence of opinion.

¶24 It should be apparent, from our analysis of the unit of prosecution for robbery, that the analysis in Molina and Johnson best carries out the legislature’s intent. The unit of prosecution is defined both by the taking of property and that the forcible taking be from or from the presence of a person against his or her will. If there is one taking of property, as the taking of the business’s receipts from a single business safe or a single cash register, there can be a conviction for robbery on only one count, regardless of the

number of employees present who have authority over the property, because there has been only one taking. If, however, there is more than one taking from more than one person, multiple convictions may result. For example, as explained, in Rupe we held that two convictions for robbery were proper where each teller had dominion and control over her separate till. And in State v. Turner, 31 Wn. App. 843, 846-47, 644 P.2d 1224 (1982), the court determined that convictions for two robberies were proper where the defendant took separate items of property from separate persons at their home.4 The court in Molina and Johnson correctly construed the robbery statute. Counts may not be multiplied based simply on the number of employees who have authority or control over the property and who are present during the taking.* ***5

¶25 Once the unit of prosecution is determined, a factual analysis is necessary to decide whether, under the facts of the case, more than one unit of prosecution is present. State v. Bobic, 140 Wn.2d 250, 266, 996 P.2d 610 (2000). Multiple convictions are proper only where the facts of the case support multiple units of prosecution committed. Id.

¶26 To determine whether four convictions on four counts of robbery are proper in this case, we must first address a second issue in this case—the effect of the charging document on the number of robbery convictions that can be upheld. The Court of Appeals requested supplemental briefing on this question. Although the Court of Appeals’ majority opinion does not address the issue as a separate matter, the dissent concluded that convictions on four counts of robbery cannot be sustained because of the manner in which the State charged the offenses. Tvedt, 116 Wn. App. at 325 (Armstrong, J., dissenting). The dissent observed that the State charged Tvedt with taking the cash from both persons, collectively, at each service station, and also charged him with taking an item of personal property at each station from one of the individuals. Because a conviction for robbery does not turn on the number of items taken from a victim, and Tvedt “simply took more property from one of the same victims still under threat of force,” the dissent reasoned, only one robbery occurred at each station. Tvedt, 116 Wn. App. at 325-26 (Armstrong, J., dissenting). Tvedt urges us to follow this analysis. We decline to do so.

¶27 An information must state all the essential statutory and nonstatutory elements of the crimes charged. U.S. Const., amend. VI; Const. art. I, § 22; CrR 2.1(a)(1); State v. McCarty, 140 Wn.2d 420, 424-25, 998 P.2d 296 (2000). However, surplus language in a charging document may be disregarded. See State v. Stritmatter, 102 Wn.2d 516, 523-24, 688 P.2d 499 (1984); State v. Worsham, 154 Wash. 575, 283 P. 167 (1929). That is, where unnecessary language is included in an information, the surplus language is not an element of the crime that must be proved unless it is repeated in the jury instructions. State v. Miller, 71 Wn.2d 143, 146, 426 P.2d 986 (1967); State v. Welding, 60 Wn. App. 184, 187 n.3, 803 P.2d 17 (1991); State v. Rivas, 49 Wn. App. 677, 682-83, 746 P.2d 312 (1987); State v. McGary, 37 Wn. App. 856, 859-60, 683 P.2d 1125 (1984). Nor is the information insufficient as a charging document if the defendant is not prejudiced by the inclusion of the unnecessary language. Stritmatter, 102 Wn.2d at 524; RCW 10.37.056.

¶28 Here, to charge robbery the State had to allege, among other things, that property was taken from or from the presence of a person having an ownership, representative, or possessory interest in the property. The State charged in count VIII that Tvedt took the business’s cash from or from the presence of Younce and Schaefer, and in count X charged Tvedt with taking cash from or from the presence of Shepherd and Piper. However, the State did not need to name every person who was present and placed in fear where only a single taking of property occurred. Thus, although counts VIII and X each charge robbery based on taking the business’s cash from or from the presence of two named persons, identifying the persons robbed as Schaefer and Piper was sufficient to state the elements of the offenses charged. The name of Younce in count VIII and the name of Shepherd in count X may be disregarded as surplusage. The information then charges Tvedt with one count of robbery for taking cash from or from the presence of Schaefer at the Exxon service station, one count for taking Younce’s truck, one count for taking cash from or from the presence of Piper, and one count for taking Shepherd’s cellular telephone. The case was tried on stipulated facts to the court, and there were no jury instructions repeating the unnecessary allegations. Accordingly, this is not a case where the State had to prove the surplus facts included in the information and thus did not have to prove a robbery of each of the persons named in counts VIII and X or to prove a robbery of both collectively. See McGary, 37 Wn. App. at 860. This is also not a case where the information is defective on the grounds of prejudice to the defendant resulting from the surplusage; Tvedt could not show prejudice given that he stipulated to the events that occurred.

¶29 Applying the appropriate unit of prosecution, Tvedt was properly charged with and convicted of four counts of robbery. At the Exxon station he forcibly took the cash from the presence of Schaefer, the cashier, against her will. He also forcibly took the truck keys from or from the presence of Younce, the owner, against his will. At the Texaco station Tvedt forcibly took cash from the presence of Piper, the assistant manager, against her will, and forcibly took Shepherd’s cell phone against his will.

CONCLUSION

¶30 The legislature has defined the crime of robbery as both a crime against property and a crime against the person. The unit of prosecution must encompass both a taking of property and a forcible taking against the will of the person from whom or from whose presence the property is taken. Accordingly, a conviction on one count of robbery may result from each separate taking of property from each person; however, multiple counts may not be based on multiple items of property taken from the same person at the same time, nor may multiple counts be based on a single taking of property from or from the presence of multiple persons even if each has an interest in the property.

¶31 We affirm Tvedt’s four convictions for first degree robbery.

Alexander, C.J., and C. Johnson, Sanders, and Fairhurst, JJ., concur.

1 A defendant may raise for the first time on appeal a claim that his double jeopardy rights were violated. State v. Adel, 136 Wn.2d 629, 631-32, 965 P.2d 1072 (1998). There is no allegation here that Tvedt waived his double jeopardy rights.

2 Since 1975 additional property crimes have been added. See RCW 9A.56.230 -.310. Importantly, the legislature, not the code reviser, placed robbery in chapter 9A.56 RCW. See Laws of 1975, 1st Ex. Sess., ch. 260, at 841, 846. The legislature’s placement of an offense within the criminal code is evidence of legislative intent. See In re Pers. Restraint of Percer, 150 Wn.2d 41, 51-52, 75 P.3d 488 (2003) (when determining legislative intent as to whether two offenses were the same for double jeopardy purposes, the court looked to the location of the offenses in the criminal code); State v. Calle, 125 Wn.2d 769, 780, 888 P.2d 155 (1995) (same).

3 The Code of 1881, § 829 provided: “Every person who shall forcibly and feloniously take from the person of another, or from his immediate presence, any article of value by violence or putting in fear, shall be deemed guilty of robbery.”

4 We also note that under the Court of Appeals’ analysis, sentences for multiple convictions of robbery could result that are disproportionate to the conduct committed. In Ladner v. United States, 358 U.S. 169, 79 S. Ct. 209, 3 L. Ed. 2d 199 (1958), the United States Supreme Court reversed one of two convictions for assault on a federal officer where the defendant fired a shotgun and injured two officers. The Government had argued that there were as many assaults as there were officers affected. The Court observed that under the statute

[pjunishments totally disproportionate to the act of assault could be imposed [under that theory] because it will often be the case that the number of officers affected will have little bearing upon the seriousness of the criminal act. For an assault is ordinarily held to be committed merely by putting another in apprehension of harm whether or not the actor actually intends to inflict or is capable of inflicting that harm. Thus, under the meaning for which the Government contends, one who shoots and seriously wounds an officer would commit one offense punishable by 10 years’ imprisonment, but if he points a gun at five officers, putting all of them in apprehension of harm, he would commit five offenses punishable by 50 years’ imprisonment, even though he does not fire the gun and no officer actually suffers injury.

Ladner, 358 U.S. at 177 (footnote omitted). The Court did not find congressional intent for this result in the materials before it.

Similar “incongruous results,” Ladner, 358 U.S. at 177, could result under the Court of Appeals’ analysis. If a defendant with no prior offenses enters a restaurant after hours, orders five employees to lie on the floor at gunpoint and takes only money from a single cash register over which all of the employees share control, he could be convicted on five counts of robbery in the first degree. See RCW 9A.56.200. His standard range sentence for each offense would be 108-144 months or 9 to 12 years. RCW 9.94A.510, .525. (Absent aggravators, the sentences would run concurrently. RCW 9.94A.589(1). No firearm enhancements are included in these examples.) If, however, several employees have already gone home and only one employee remains who is forced at gunpoint to lie on the floor, the defendant could be convicted on only one count of first degree robbery. The defendant’s standard range sentence would be 31-41 months. RCW 9.94A.510, .525. There is no difference in the defendant’s conduct, using a firearm to force employees to lie on the floor, and no difference in the taking or the intent to take the money belonging to the restaurant. There is a considerable disparity, however, in the standard range sentences, based only on the number of employees who happen to be present. Given the significantly harsher result based upon the number of persons present, there must be clear indications of legislative intent for such a result, and there are none.

The dissent maintains that a defendant who places a greater number of employees in fear of their lives would be insufficiently punished under the unit of prosecution we recognize. Dissent at 729-30. Nothing in our decision forecloses the State from charging other appropriate crimes, such as assault.

5 We recognize, as the State points out, that there is a split of authority from other states regarding whether multiple robbery convictions may be upheld where a business’s property is taken from the presence of more than one employee, each of whom has authority over, or dominion and control of, the property. Some courts conclude that robbery is primarily a crime against persons, and multiple convictions may result where more than one employee is present when the taking occurs. E.g., People v. Borghesi, 66 P.3d 93 (Colo. 2003) (convictions on two counts of robbery upheld where cash was taken from two store clerks at a single cash register; a robber may be convicted of more than one count of robbery for a single taking of property from more than one person). Other courts conclude that although the crime involves a forcible taking, one taking will result in only one conviction, regardless of the number of employees present. E.g., Wheat v. State, 297 Ark. 502, 503, 763 S.W.2d 79 (1989) (the defendant, while armed with a pistol, forced two clerks to lie on the floor while the pharmacist gathered property of the pharmacy; the court noted that while the focus of aggravated robbery is the threat of physical harm to the victim, only one robbery conviction can result where the defendant did not take or intend to take property individually from each person); State v. Faatea, 65 Haw. 156, 648 P.2d 197 (1982) (five employees ordered at gunpoint to lie on the floor and threatened with having their heads “blown off” while defendant and another took hotel’s money; four of defendant’s five convictions for robbery reversed).