No. 63946-3-I.The Court of Appeals of Washington, Division One.
November 8, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-1-05501-5, Helen Halpert, J., entered August 4, 2009.
Affirmed by unpublished opinion per Dwyer, C.J., concurred in by Grosse and Appelwick, JJ.
DWYER, C.J.
When the evidence in a criminal trial demonstrates multiple criminal acts that could each constitute the charged crime, the defendant is entitled to a unanimity instruction or an election by the State of the act relied on for conviction. But if the evidence does not show multiple criminal acts, or if any multiple acts were part of a continuing course of conduct, neither an instruction nor an election is required. Because the simultaneous taking of multiple items in this case could only be charged as a single criminal act, and, alternatively, because any criminal acts were part of a continuing course of conduct, the trial court properly refused to give a unanimity instruction. For these reasons, and because the other claims asserted on appeal lack merit, we affirm.
I
Based on allegations that Gary Kenfield sexually assaulted and robbed P.K., the State charged him with attempted rape and second degree robbery.
At trial, P.K. testified she was walking home around 3 a.m. when Kenfield called to her from his car. They talked for about an hour before deciding to go to his home for drinks. Kenfield then drove them to a nearby alley and parked. P.K. became nervous and got out of the car. Kenfield followed her on foot. They talked for another 30 to 45 minutes before Kenfield suddenly grabbed her around the neck, pulled her down a slope, and demanded oral sex. When P.K. refused, he became angry and dragged her into some bushes.
Kenfield got on top of P.K. and began searching her pockets, saying “where’s the money?” P.K. feigned an asthma attack, hoping to frighten him into leaving. She said, “I can’t breathe” as Kenfield began going through her purse. The purse contained a black handbag which in turn contained a $50 bill and an asthma inhaler. Kenfield found the inhaler and forced it into P.K.’s mouth. He then took the handbag and ran off. P.K. did not see Kenfield take the purse because she was pretending to be passed out and had closed her eyes.
P.K. ran to a friend’s house and called 911. Police arrived within a minute and searched the area. About an hour later, a tracking dog found P.K.’s purse in the bushes where P.K. claimed Kenfield had dragged her. The dog then tracked back to the sidewalk and around a corner where it located Kenfield in some bushes. Kenfield had a $50 bill in his right hand. P.K.’s black handbag and various items belonging to her were found nearby.
Kenfield testified that he was looking for cocaine that evening when P.K. flagged him down. She asked how much cocaine he wanted and whether he wanted a date. Kenfield said he wanted $50 worth of crack cocaine and gave P.K. a $50 bill. P.K. called her dealer. When the cocaine arrived, P.K. directed Kenfield to drive down an alley and park next to a garage. After they smoked some crack in the garage, P.K. pulled Kenfield’s shorts down and said she was going to give him oral sex. Kenfield rebuffed her and instead gave her another $50 bill for more cocaine.
P.K. walked away and told Kenfield not to follow her or she would call the police. She also said she was keeping his $50. A brief dispute ensued, and P.K. eventually agreed to obtain more crack for Kenfield. Shortly thereafter, she demanded more cocaine and the rest of Kenfield’s money. At some point, she began convulsing and told Kenfield to get her inhaler. He opened her purse and found a handbag inside. The handbag contained the inhaler and $50 that he believed was his. When he saw the money, he thought, “at least I can get this back.” He put some drugs he was holding into the handbag. He then placed the handbag behind P.K.’s neck and gave her two squirts from the inhaler. P.K. leapt to her feet, clenched her fists, and announced she was going to get her brother to beat Kenfield up and take his money.
Kenfield ran toward his car with the “inhaler in one hand and [the handbag] in the other.” When he realized his route did not give him access to the alley where he parked his car, he hid in some bushes.
Kenfield denied trying to rape or rob P.K. and claimed he intended to return all the items that were not his.
Prior to closing arguments, defense counsel requested a unanimity instruction and an instruction regarding good faith claim of title. The court rejected the instructions, stating that “[t]his was certainly a continuing offense, and there is no authority, nor would it make any sense in this court’s view to give a good-faith claim of title defense where one of the items stolen . . . is supported by [the defense], but not the others.”
In closing argument, defense counsel discussed the ownership of the $50, stating:
Finally, Mr. Kenfield . . . was found in the area with a $50 bill and some other items. Here’s the 50. How did the $50 get there that night? We have traced a provenance for the $50 bill, and [P.K.] gives no provenance for the $50 bill. Somebody gave it to her. She doesn’t work, she’s unemployed, does odd jobs, doesn’t know who gave it to her, doesn’t know when she had that.
. . . .
So let’s talk about the provenance of the $50. You saw evidence about this. Mr. Kenfield was given a check, it was written to Lisa Redfern, it was cashed, and Terry Strohschein came and said, “Yeah, I saw Gary get paid. I saw him get $50 bills.”
In rebuttal, the prosecutor responded to defense counsel’s argument as follows:
The $50 bill, where did this $50 bill come from? P.K. told you her mom gave it to her. The defendant told you that this woman Lisa, who did not testify at trial, gave him the $50. And what Terry told you is that at some point in his life, he saw Terry (sic) hand the defendant a $50 bill, but he was candid with you, and he said, “I don’t really even remember when that was.” So the suggestion that the defense somehow provided you with a better origin of the $50 bill just doesn’t hold water in this case. P.K. told you she got it from her mom. There is no reason to believe otherwise.
The jury acquitted Kenfield of attempted rape, but found him guilty of second degree robbery. The defense moved for a new trial, arguing that the court erred in refusing the proposed instructions. The court denied the motion, reiterating that “there was one taking, basically. It was continual, and . . . the defendant claimed that he was entitled to some of the property, but not all of the property.” Kenfield appeals.
II
Kenfield contends that the trial court erred in refusing his requested instructions on unanimity and good faith claim of title. To the extent the court’s decision was based upon matters of fact, we review it for abuse of discretion. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). If the decision was based upon a matter of law, our review is de novo Walker, 136 Wn.2d at 772.
A defendant is entitled to a unanimity instruction if the State presents evidence of several distinct criminal acts, each of which could support a criminal charge, but only charges a single offense and does not elect the act it intends to rely on for conviction. State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984). The facts in this case did not demonstrate several distinct acts of the charged offense.
Second degree robbery, as defined in the court’s instructions, occurs when a person takes personal property from another by force with intent to deprive that person of the property.[1]
Multiple counts of robbery “may not be based on multiple items of property taken from the same person at the same time.”State v. Tvedt, 153 Wn. 2d 705, 720, 107 P.3d 728
(2005). Here, Kenfield admitted taking the handbag, the inhaler, and the money at the same time. Whether he intended to later return some of the items or claimed ownership of one of them does not change the fact that the items were, as the trial court noted, part of “one taking.” Because the facts did not demonstrate separate and distinct criminal acts, the trial court properly ruled that no unanimity instruction or election was required. See State v. Furseth, 156 Wn. App. 516, 233 P.3d 902 (2010) (where unit of prosecution for possession of child pornography allowed only one charge for possession of multiple images, evidence did not demonstrate multiple acts and did not require unanimity instruction).
Moreover, even if Kenfield could demonstrate separate and distinct criminal acts, he would still not be entitled to a unanimity instruction if, as the trial court determined, the acts were part of a continuing course of conduct. State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989). Whether multiple acts constitute a continuing course of conduct is determined by viewing the facts in a commonsense manner Handran, 113 Wn.2d at 17. Courts may consider whether the acts occurred at different times or places, whether they involved the same victim, and whether in each act the defendant intended to secure the same objective. State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995). Viewed in a commonsense manner, the facts in this case demonstrate a continuing offense. There was one taking of multiple items from one person. Although Kenfield claims he had different ultimate objectives for the items he took (i.e., he intended to keep the money and return the rest), the facts indicate he had a single initial objective — to take the handbag and its contents. Considering that the intent to deprive element of robbery does not require intent t permanently deprive, [2] we cannot say the court abused its discretion in determining that the facts demonstrated a continuing offense.
Kenfield next contends the court erred in failing to give the jury his proposed instruction on good faith claim of title. The instruction stated:
For the state to prove any wrongful taking, the state must prove that the defendant had the intent to steal. No wrongful taking occurs if he honestly believes the property is his own, or is nobody’s, or he otherwise honestly believes he is authorized to take it, so long as the property or service was appropriated openly and avowedly under a claim of title made in good faith, even though the claim be untenable. It makes no difference whether the mistake is reasonable or unreasonable so long as it is real, for in any such event the defendant lacks an intent to defraud.
The court properly rejected this instruction for two reasons.
First, it was an inaccurate statement of the law. The last sentence erroneously implies that “intent to defraud” is an element of robbery. A defendant is not entitled to an instruction that inaccurately states the law. State v. Ager, 128 Wn.2d 85, 93, 904 P.2d 715 (1995). Second, a good faith claim of title instruction is available only if there is evidence that (1) the taking was open and avowed, and (2) the defendant has some legal or factual basis for a good faith belief that he has title to the property. Ager, 128 Wn.2d at 95. The record in this case does not satisfy either of these prerequisites. Kenfield did not openly and avowedly assert title over the money he took from P.K. Rather, the record shows that he simply ran off with it and then hid in the bushes. There is no evidence that he openly claimed the money or that P.K. was even aware that he took it. In addition, he concedes he had no claim of title to the other items he took.
Last, Kenfield contends the prosecutor committed reversible misconduct when she stated in rebuttal that a potential defense witness “did not testify at trial.” According to Kenfield, this remark improperly referred to a missing witness and shifted the burden of proof. Because Kenfield did not object to this remark, any misconduct was waived unless the remark was “`so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice'” that could not have been cured. State v. Gregory, 158 Wn.2d 759, 841, 147 P.3d 1201 (2006) (quotin State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239
(1997)). The prosecutor’s remark does not meet this standard.
In evaluating alleged misconduct, we review the challenged remarks in the context of the total argument. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). Otherwise improper remarks do not warrant reversal if they “were invited or provoked by defense counsel and are in reply to his or her acts and statements, unless the remarks are not a pertinent reply or are so prejudicial that a curative instruction would be ineffective.” State v. Gentry, 125 Wn.2d 570, 643-44, 888 P.2d 1105 (1995). Here, defense counsel argued in closing that P.K. had not provided proof of her claim to the $50, but the defendant had. He pointed out that while P.K. could not remember who gave her the $50, Kenfield had traced the $50 to his landlord, Lisa Redfern. Given defense counsel’s arguments and the prosecutor’s right to a pertinent response, the prosecutor’s single passing comment that Redfern “did not testify,” even if improper, was neither flagrant nor ill-intentioned and could easily have been cured. The prosecutor did not state that the defense could or should have called Redfern. She simply pointed out that Kenfield’s proof regarding his title to the $50 was not as strong as defense counsel claimed.
In a pro se statement of additional grounds for review, Kenfield contends the prosecutor committed misconduct, stating:
Prosecutor’s misconduct — Just prior to Lisa Redfern’s testimony in Court. The prosecutor told Lisa Redfern she was part of my . . . defense team
interviewed her. Passing Questions, that would at stand, then bring in my criminal history of twenty-one twenty-six years ago. Judge, already ruled it not to be usable.
Prosecutor State of Washington gave new apartment and employment for [P.K.], [i]n exchange for her testimony. She has 4-children a mother all on welfare, [a]nd involvement of drug sales, would end benefits from State.
Because the nature of the asserted claims is not clear and/or involves matters outside the record, we will not consider them. RAP 10.10(c).
Kenfield also contends his life sentence violates the eighth amendment prohibition against cruel and unusual punishment because he was “given the same time as the Green River Killer.” Our State Supreme Court has made it clear, however, that the sentence in the Green River case was a product of prosecutorial discretion in unique circumstances, and that, standing alone, the sentence provides no basis for declaring sentences in other prosecutions disproportionate or unconstitutional. See State v. Yates, 161 Wn. 2d 714, 168 P.3d 359 (2007) State v. Cross, 156 Wn. 2d 580, 132 P.3d 80 (2006). The Supreme Court has also repeatedly held that a sentence of life without parole is not cruel or unusual in cases where the current conviction is for second degree robbery. State v. Manussier, 129 Wn.2d 652, 676, 921 P.2d 473 (1996) State v. Rivers, 129 Wn.2d 697, 705, 713-14, 921 P.2d 495 (1996). Kenfield does not attempt to distinguish these cases and fails to address the criteria for determining whether a sentence is cruel and unusual. See Rivers, 129 Wn. 2d at 712-13.
Affirmed.
We concur:
(1989).