No. 37109-0-II.The Court of Appeals of Washington, Division Two.
September 23, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-06142-1, Frederick W. Fleming, J., entered December 7, 2007.
UNPUBLISHED OPINION
HUNT, J.
Kim R. DeLavergne appeals his first degree robbery jury conviction, RCW 9A.56.200(1)(a)(ii), for threatening a drugstore cashier with his concealed hand to steal money. He argues that the evidence was insufficient to support his conviction. We affirm.
FACTS
On December 27, 2006, Kim R. DeLavergne robbed a Walgreens’s store. He approached the cashier, Jessica Rhen, from behind and demanded money. Rhen turned and noticed that DeLavergne’s right hand was inside of his jacket pocket and he appeared to be holding a gun pointed at her. Fearing injury, Rhen complied with DeLavergne’s demand and gave him the money from her cash register. DeLavergne left Walgreens, taking the money with him.
A jury found DeLavergne guilty of first degree robbery. He appeals.
ANALYSIS
DeLavergne argues that the evidence was insufficient to establish that he used force, a threat of force, or a fear of injury while robbing the Walgreens’ cashier. His argument fails.
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004), review granted on other grounds. An appellant’s claim of insufficient evidence admits the truth of the State’s evidence and all reasonable inferences that can be drawn from the evidence. Thomas, 150 Wn.2d at 874. We consider circumstantial evidence to be as reliable as direct evidence; we “defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.” Thomas, 150 Wn.2d at 874-75. RCW 9A.56.200(1)(a)(ii) provides:
(1) A person is guilty of robbery in the first degree if:
(a) In the commission of a robbery or of immediate flight there from, he or she:
. . . .
(ii) Displays what appears to be a firearm or other deadly weapon.
RCW 9A.56.190 defines “robbery” as:
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.
(Emphasis added).
The evidence here supports that DeLavergne used such a threat of force to take money from Rhen’s cash register and that the degree of force raised this robbery to the first degree by virtue his threatening her with what appeared to have been a firearm in his pocket. Under similar circumstances, we have previously held:
A first degree robbery conviction may be committed by displaying a weapon, which requires some physical manifestation. . . . [including] evidence of a physical manifestation through witnesses who testified that Jennings held his hand in his shirt consistent with holding a gun.
State v. Jennings, 111 Wn. App. 54, 65, 44 P.3d 1
(2002) (citing In re the Personal Restraint of Bratz, 101 Wn. App. 662, 676, 5 P.3d 759 (2000)).
As in Jennings, here, the State presented uncontroverted evidence that supports the jury’s verdict: (1) DeLavergne held his hand in his jacket pocket consistent with holding a gun pointed at Rhen, and (2) DeLavergne’s manifestation of an apparent weapon put Rhen in fear of being injured. Contrary to DeLavergne’s argument, this uncontroverted evidence showed a threat of force for purposes of proving first degree robbery.
CONCLUSION
Accordingly, we hold that sufficient evidence supports the jury’s verdict. We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Houghton, PJ., Quinn-Brintnall, J., concur.