No. 49950-5-IThe Court of Appeals of Washington, Division One.
Filed: January 27, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 011072494, Hon. Carol Schapira, January 30, 2002, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Cheryl D. Aza, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
John B. Castleton Jr, 516 3rd Ave W554, Seattle, WA 98104.
PER CURIAM.
A trial court can give an inferior degree instruction where the evidence indicates that the defendant might have committed only the inferior offense to the exclusion of the charged offense. Jervon Reddick was charged with first degree robbery and convicted of the inferior degree offense of second degree robbery. We affirm because the jury could reasonably conclude that Reddick was guilty of second degree robbery but not first degree robbery.
FACTS
Reddick stole several items from an Albertson’s store, and a loss prevention officer followed him to the parking lot and confronted him while Reddick sat in the passenger seat of a car. According to the Albertson’s employee, Reddick said “Back off before I shoot you” and flashed a handgun.
The loss prevention officer testified that he was “ninety-eight percent sure” that he saw a gun, but when police arrested Reddick a short time later, they found only a box cutter and some of the stolen items in the passenger seat of the car. Reddick eventually admitted to stealing the items, but denied ever having a gun or threatening the store employee.
The State charged Reddick with first degree robbery, alleging that he displayed what appeared to be a firearm in the commission of the crime.
The trial court instructed the jury on the lesser-included offense of second degree robbery over Reddick’s objection. The jury acquitted Reddick of first degree robbery, but convicted him of second degree robbery, and Reddick appeals.
DISCUSSION
The sole issue on appeal is whether the trial court erred in giving the State’s proposed instruction on the inferior degree offense of second degree robbery. Under RCW 10.61.003, a jury “may find the defendant not guilty of the degree charged in the indictment or information, and guilty of any degree inferior thereto[.]” An instruction on an inferior degree offense is proper when: (1) the statutes for both the charged offense and the proposed inferior degree offense “proscribe but one offense;” (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant committed only the inferior offense. State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150
(2000). The first two elements of this test involve a legal inquiry, whereas the third element involves a determination of whether an inferior degree instruction is warranted under the particular facts of a given case. The parties agree that the legal component is satisfied in this case, so only the third element is at issue.
The facts of a case call for an inferior degree instruction only if the evidence would permit a jury to rationally find the defendant guilty of the inferior degree offense and acquit him of the greater Fernandez-Medina, 141 Wn.2d at 456 (citing State v. Warden, 133 Wn.2d 559, 563, 947 P.2d 708 (1997)). The evidence must raise an inference that only the inferior degree offense was committed to the exclusion of the charged offense. Fernandez-Medina, 141 Wn.2d at 455. The party requesting the instruction must point to evidence that affirmatively supports it and may not rely solely on the possibility that the jury would disbelieve the opposing party’s evidence. State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808
(1990), disapproved of on other grounds by State v. Blair, 117 Wn.2d 479, 816 P.2d 718 (1991); State v. Charles, 126 Wn.2d 353, 355, 894 P.2d 558
(1995). It is not necessary, however, that this affirmative evidence be offered by the party seeking the instruction; rather, we consider all the evidence presented in making this determination. Fernandez-Medina, 141 Wn.2d at 456.[1] Further, we view the supporting evidence in the light most favorable to the party that requested the instruction Fernandez-Medina, 141 Wn.2d at 455-56.
Viewing all the evidence in the light most favorable to the State, we conclude that the trial court properly instructed the jury on the inferior degree offense of second degree robbery. A person commits second degree robbery if he or she `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[.]’ RCW 9A.56.190.
The crime is elevated to first degree robbery if “[i]n the commission of a robbery . . .” the person “[d]isplays what appears to be a firearm[.]” RCW 9A.56.200(1)(a)(ii). In this case, Reddick admitted to stealing merchandise from the Albertson’s store, but he denied ever threatening the store employee or having a gun. The employee, on the other hand, said he was “ninety-eight percent sure” that Reddick flashed a gun at him, while unequivocally stating that Reddick threatened to shoot him. Further, when police apprehended Reddick a short time later, they found no gun. The jury could reasonably conclude from this evidence that Reddick threatened to shoot the store employee but that the State had failed to prove beyond a reasonable doubt that Reddick had a firearm or displayed anything resembling a firearm.
Reddick argues that the evidence presented was only susceptible of two rational conclusions: either Reddick was telling the truth and he made no threat, in which case he was guilty only of theft, or the store employee was telling the truth and Reddick was guilty of first degree robbery. But the jury could have believed everything the store employee said and still doubted whether Reddick displayed an apparent firearm. Further, the State did not rely solely on the possibility that the jury would disbelieve Reddick in requesting the instruction, but rather relied on affirmative evidence from both parties that indicated that (1) the store employee was only “ninety-eight percent” certain he saw a gun, (2) police found no gun, (3) Reddick denied having a gun, (4) police found a box cutter in Reddick’s car, raising the inference that the employee may have mistaken the box cutter for a firearm, but (5) the employee testified unequivocally that what he saw was not a box cutter. This evidence was sufficient to create reasonable doubt as to what the store employee saw when Reddick threatened him. Further, although the display of a box cutter, combined with a threat to shoot, might be sufficient to convict Reddick of first degree robbery,[2] that is not the test for the giving of an inferior degree instruction. Rather, we view the evidence in the light most favorable to the State to determine whether the jury could rationally conclude that Reddick committed second degree robbery but not first degree robbery. See State v. Barker, 103 Wn. App. 893, 899, 14 P.3d 863, review denied, 143 Wn.2d 1021 (2001) (“While [the defendant’s] conduct pointing a finger under a shirt certainly supports the “display” element of first degree robbery, it does not follow, necessarily that it supports only first degree robbery.”) (emphasis in original). Given the evidence presented by both sides, it was reasonable for the jury to conclude that the store employee told the truth about the verbal threat he heard, but may have been mistaken about what he saw.
The trial court properly instructed the jury on the inferior degree offense of second degree robbery. Reddick’s conviction is affirmed.