No. 50777-0-IThe Court of Appeals of Washington, Division One.
Filed: July 7, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 01-1-07245-1 Judgment or order under review Date filed: 07/12/2002
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Nancy P Collins, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Julie Dee Cook, Attorney at Law, W 554 King Co Cthse, 516 3rd Ave, Seattle, WA 98104-2385.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Deric Martin, King Co Pros Ofc/Apellate Unit, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.
BECKER, C.J.
Kenneth Beaman appeals from his convictions for two counts of first degree robbery and one count of second degree robbery. Finding no error, we affirm the judgment and sentence.
The State’s evidence established appellant Beaman’s participation, along with Kenneth Martin and Jeanne Rudge, in three convenience store robberies that occurred in quick succession in August 2001. A jury convicted Beaman, and the court imposed a standard range sentence. He now appeals.
Beaman first contends that the trial court erred when it denied his motion to suppress letters he sent to Rudge while they were in a Kansas jail awaiting extradition. In the letters, Beaman set forth a story in which Martin threatened and coerced Beaman and Rudge into assisting with the robberies. Beaman asked that Rudge memorize the version of the events outlined in his letters in order for their stories to match.
Before trial, Beaman unsuccessfully brought a CrR 3.6 motion to suppress the letters on the basis that they were seized without a warrant and without probable cause. The trial court found that the Kansas authorities had probable cause to open Beaman’s mail because there was reason to believe that he and Rudge might have been planning an escape. Beaman now argues, citing CrR 3.5, that it was the State’s burden — not his — to establish a basis for admitting the letters, and that the State failed to meet this burden. We reject this argument, for two reasons. First, he did not preserve the issue for appeal. At no time did he assert below that contents of the letters constituted statements of an accused that were subject to CrR 3.5. Second, CrR 3.5 sets forth the procedure for establishing the voluntariness of a defendant’s statements made during the course of custodial interrogation. Beaman’s voluntary statements in his letters were not made in the course of interrogation and thus do not fall under that rule. Beaman next contends that there was insufficient evidence that he personally displayed a weapon during the Short Stop robbery to support his conviction for first degree robbery related to that count. We need not consider the evidence as to his personal display of a weapon because we find sufficient evidence to prove that his accomplice, Martin, displayed a weapon.
A conviction for first degree robbery requires proof that the accused displayed what appeared to be a weapon. It is not necessary to prove the victim actually saw the weapon. State v. Kennard, 101 Wn. App. 533, 539, 6 P.3d 38, review denied, 142 Wn.2d 1011 (2000). However, verbal threats to use a weapon do not, alone, amount to a display of a weapon. There must be a `physical manifestation’ indicating the presence of a weapon. State v. Scherz, 107 Wn. App. 427, 433, 27 P.3d 252 (2001).
The store clerk testified that Beaman and Martin suddenly lunged over the counter and began grabbing money from the till when she opened it. When she asked what they were doing, Martin had his hand under his shirt and told her to `back off.’ The clerk testified that she complied with Martin’s demands because she thought he had a weapon. Martin’s hand under his shirt, coupled with the words `back off’, was enough to prove a physical manifestation indicating the presence of a weapon. See State v. Henderson, 34 Wn. App. 865, 867, 664 P.2d 1291 (1983) (sufficient evidence of first degree robbery where victim observed defendant’s hand concealed in a pocket, which had a bulge, and defendant said `I have this’). Beaman moved to dismiss based on alleged violations of the Uniform Criminal Extradition Act. He now contends, pro se, that the court erred in denying his motion. Where adopted, the Uniform Criminal Extradition Act governs state extradition procedures. White v. King County, 109 Wn.2d 777, 780, 748 P.2d 616 (1988). Washington has adopted the Uniform Criminal Extradition Act in Chapter 10.88 RCW. White, 109 Wn.2d at 780.
The Act provides that an accused may waive his rights under the Act by signing, in front of a judge, a writing that acknowledges his consent to return to the state seeking extradition. RCW 10.88.430. Before such a waiver is executed, the judge has a duty to inform the accused that he has the right to the issuance and service of a warrant of extradition and the right to seek a writ of habeas corpus. RCW 10.88.430. Below, the State produced a certified copy of a waiver of extradition form.
The document bears the signatures of Beaman and a Kansas judge. Beaman testified that although he signed the document, there was no judge present. He also claimed that a court clerk handed him the waiver form and told him that if he did not sign it, he would remain in a Kansas jail for up to six months. Beaman testified that no one advised him of his right to an attorney or his right to contest the extradition.
But as the trial court observed, the waiver form states in part, `I understand my rights under the Uniform Criminal Extradition Act (KSA 22-2701 et. seq.).[1] ) . . . I further waive my rights to court-appointed counsel or to retain my own attorney for these proceedings.’[2] Beaman testified that he completed two years of college, that he had prior experience with the legal system and Miranda warnings, and that he knew what `waiver’ meant. And the portion of the form signed by the judge states that Beaman voluntarily signed the waiver in his presence. Further, as the trial court noted, Beaman had a number of convictions for crimes of dishonesty that could be used to assess his credibility. Under these circumstances, the trial court was not obligated to believe Beaman’s description of the proceeding in Kansas. The trial court could find that Beaman understood his rights under the Extradition Act, and made a valid waiver of them. Denying the motion to dismiss was not error.
Beaman next contends that the jury erroneously convicted him of the robberies because Rudge’s testimony established that Beaman participated in the crimes under duress. However, it is up to the jury to assess the credibility of witnesses. The jury could have easily rejected Rudge’s version of the events. The jury had seen Beaman’s letters, which strongly suggested that he fabricated the claim that Martin coerced him into committing the crimes. We find the evidence sufficient to support the jury’s rejection of Beaman’s duress defense.
In a related argument, Beaman contends that the trial court erroneously precluded Rudge from testifying to a number of threats Martin allegedly made to Beaman before the crimes. The record reflects that although the trial court initially precluded this testimony as inadmissible hearsay, the court later reconsidered its decision and allowed all of the testimony. Thus, we find no error.
Finally, Beaman contends that the trial court erred when it refused to impose an exceptional sentence downward based on the evidence supporting his failed duress defense. See RCW 9.94A.535(1)(c).
A sentencing court can consider a failed defense to be a mitigating factor supporting an exceptional sentence downward. See State v. Jeanotte, 133 Wn.2d 847, 851-53, 947 P.2d 1192 (1997). However, a defendant generally may not appeal from a standard range sentence. RCW 9.94A.585(1). A limited exception to this rule allows for appellate review only where a sentencing court has refused to exercise discretion at all or has relied on an impermissible basis for refusing to impose an exceptional sentence below the standard range. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997), review denied, 136 Wn.2d 1002 (1998).
The record shows that the court considered Beaman’s request for application of a mitigating factor, and found the facts he offered in support of mitigation unconvincing. This was a proper exercise of discretion. Beaman may not appeal the ruling denying his request for an exceptional sentence. Affirmed. WE CONCUR:
SCHINDLER and KENNEDY, JJ., concur.