STATE v. DAVIS, 124 Wn. App. 1039 (2004)

No. 22578-0-IIIThe Court of Appeals of Washington, Division Three.
Filed: December 16, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Spokane County. Docket No. 03-1-02755-4. Judgment or order under review. Date filed: 11/24/2003. Judge signing: Hon. Tari S Eitzen.

Counsel for Appellant(s), Cece Lana Glenn, Attorney at Law, 1309 W Dean Ave Ste 100, Spokane, WA 99201-2018.

Counsel for Respondent(s), Frank Alan Grigaliunas, Spokane County Prose Atty Ofc, 1100 W Mallon Ave, Spokane, WA 99260-0270.

Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.

SWEENEY, J.

Robert Davis challenges the sufficiency of the evidence to support his conviction for second degree robbery. But the victim identified Mr. Davis as the perpetrator. And Mr. Davis was later found with the victim’s possessions. The evidence of guilt here is overwhelming and we affirm.

FACTS
Brian Varner and two friends approached a group of people at Riverfront Park in Spokane, Washington. Mr. Varner’s friend asked to borrow a phone. Robert Davis and another man in the group pressured Mr. Varner for money. Mr. Varner gave them a dollar. But the men pressured for more money. Mr. Varner refused. Mr. Davis tackled him, threw him against the wall, and started to strangle him. Mr. Davis threatened to kill him: “Empty your pockets and don’t make a move or I will kill you.” Report of Proceedings (RP) at 100. Someone then went through Mr. Varner’s pockets. Another man emptied his backpack. Mr. Davis pressed a pen against Mr. Varner’s jugular vein and threatened to kill him.

The men left. Mr. Varner called 911. An officer arrived. Mr. Varner described the robbery and the culprits. The stolen items included a couple decks of `Magic Gathering Cards,’ a Scrye Magazine, and a game called `When Darkness Comes.’ RP at 144. The officer broadcast a description of the suspects.

A second officer heard the description and spotted two men who matched the description, and asked that Mr. Varner be brought to identify them. The second officer stopped Mr. Davis. Mr. Davis carried a backpack. The officer asked to search it. Mr. Davis consented. The officer found a Scrye Magazine and a game titled `When Darkness Comes,’ Mr. Varner’s stuff. Mr. Varner arrived and identified the two men who robbed him. Police arrested them. The State charged Mr. Davis with robbery in the second degree and a jury found him guilty. The court instructed on accomplice liability.

DISCUSSION
Mr. Davis challenges the sufficiency of the evidence and the propriety of the accomplice liability instruction.

We review the evidence here in the light most favorable to the State. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004); State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). An instruction is warranted if supported by the evidence. State v. Berube, 150 Wn.2d 498, 510-11, 79 P.3d 1144 (2003). The evidence must `support the theory upon which the instruction is based.’ State v. Allen, 116 Wn. App. 454, 465, 66 P.3d 653 (2003); Berube, 150 Wn.2d at 511.

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. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial.

RCW 9A.56.190.

(1) A person is guilty of robbery in the second degree if he commits robbery.

(2) Robbery in the second degree is a class B felony.

RCW 9A.56.210.

The evidence must show that the defendant solicited, commanded, encouraged, or requested the principal to commit the crime charged, or that the defendant aided or agreed to aid the principal in planning or committing the crime to support accomplice liability. RCW 9A.08.020(3)(a); Berube, 150 Wn.2d at 511.

Mr. Varner said Mr. Davis robbed him. Mr. Davis tackled him and threw him against the wall. Mr. Davis began strangling him and said, “Empty your pockets and don’t make a move or I will kill you.” RP at 100. During this time, someone emptied Mr. Varner’s pockets while another man emptied his backpack. Mr. Davis took a pen and pressed it against Mr. Varner’s jugular vein and threatened to kill him with it. And finally police caught Mr. Davis red-handed with Mr. Varner’s possessions.

The evidence that Mr. Davis robbed Mr. Varner, as a principal and as an accomplice, is overwhelming. And the challenge to the sufficiency of the evidence here is specious.

ADDITIONAL GROUNDS FOR REVIEW
Mr. Davis raises other assignments of error.

First, Mr. Davis contends that the prosecutor committed prosecutorial misconduct by submitting untrue and falsified evidence to the jury.

`The defendant bears the burden of `establishing both the impropriety of the prosecutor’s conduct and its prejudicial effect.” State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995) (quoting State v. Furman, 122 Wn.2d 440, 455, 858 P.2d 1092
(1993)).

Mr. Davis fails to cite any specific or falsified evidence and we find none.

Mr. Davis next challenges the lack of probable cause for a warrantless search and seizure of his backpack. His claim is that the police did not have probable cause for the search. But he raises this challenge for the first time on appeal and there is insufficient evidence in the record to determine whether there was a lawful search of Mr. Davis’s backpack. However, there is independent evidence, other than the items found within the backpack, to find Mr. Davis guilty.

We affirm the conviction.

A majority of the panel has determined that 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.

KATO, C.J. and BROWN, J., concur.