STATE v. McCOY, 145 Wn. App. 1049 (2008)

No. 60134-2-I.The Court of Appeals of Washington, Division One.
July 21, 2008.

Appeal from a judgment of the Superior Court for King County, No. 06-1-03538-7, Paris K. Kallas, J., entered June 8, 2007.

Affirmed by unpublished per curiam opinion.

PER CURIAM.

A threat to use force is implied when there is unequivocal demand for the immediate surrender of money from a bank teller without any color of right to that money. That implicit threat which induces a teller to part with the money is sufficient to sustain a robbery conviction. Here, the defendant made unequivocal demands for money from bank tellers at three different financial institutions. We affirm.

FACTS
Raymond McCoy was identified as the person who took money from tellers working at three Seattle area banks: Sterling Savings Bank, US Bank, and Key Bank.

Sterling Savings Bank

McCoy approached Marlena Willey’s teller station and reached for the money she was still holding in her hand from a previous transaction. She pulled the money back, initially thinking that he was joking. He again reached for the money and she told him to “[s]top it.” McCoy then said, “This is no joke. This is a robbery. Give me the money.” It was at that point that Willey knew it was a real robbery. Willey was training Olga Moore for the teller position that day. Moore testified that McCoy demanded the money and when Willey did not react, he reached over and said, “I am serious, give me the money.” Moore described Willey as “very, very stressed out” after the incident and testified that “everybody was shocked” as a result of the robbery. Moore and Ruby Elwood, the branch manager, identified McCoy as the person who took the money.

US Bank

McCoy passed a note to Jasmine Fung, a teller at US Bank, directing her to give him all of her money and iterating that “this is not a game.” McCoy then verbally conveyed the same demand to Fung. When she started to give him the money, he reached out to her cartridge to get the money himself. Fung also positively identified McCoy as the person to who took approximately $2,000.

An employee seated nearby, heard Fung say, “I was robbed, I was robbed.” The responding police officer described Fung as “a little disturbed” and “shaken” by the incident. As a result, he only spoke with her briefly.

Key Bank

McCoy greeted Tuan Le, a teller at Key Bank, before slipping him a note on a card. Written in all capital letters it said, “ATTENTION, THIS IS A HOLDUP. PLEASE REACH INTO YOUR DRAWER AND PLACE ALL THE 100’s INTO THE BAG.” McCoy slid a plastic bag to Le under the Plexiglas. Le required a few moments to gather himself and did as he was asked.

When asked how long the entire incident took, Le responded, “To me, you know, when the incident happened, it lasted forever, but I could say anywhere between a minute to three minutes.” The teller working next to Le did not observe the interactions. Le gave her a signal that he had just been robbed.

King County Jail Disclosure

McCoy and Kevin Olsen, also being held for bank robbery, met in the King County Jail. Olsen and McCoy performed legal research work together while in jail. Over the course of approximately ten conversations initiated by McCoy, McCoy admitted to committing several bank robberies. Olsen took notes regarding these conversations. Olsen did not see either the police reports or the certificate of probable cause in McCoy’s case. McCoy told Olsen that he had left a palm print on the counter at Key Bank and was contemplating explaining its presence by saying he was in the bank at a different time than the robbery. McCoy recounted that he had snatched money out of the hands of one of the tellers and that he was frustrated by one of the robberies because the teller trainee in the bank identified him with more specificity than had the bank employee senior to her.

Olsen shared his knowledge of McCoy’s activities with FBI (Federal Bureau of Investigation) agents who contacted Dag Aakervik, the Seattle Police detective in charge of McCoy’s case. Aakervik later took a tape recorded and handwritten statement from Olsen. Aakervik found Olsen’s knowledge of the crimes to be detailed. Olsen did not receive any benefit in return for his assisting the police.

McCoy’s Testimony

McCoy testified that he did not rob any of the three banks. He also stated that he was in Key Bank the morning of the day that bank was later robbed, claiming that he was exchanging coins that he had received panhandling for paper currency. McCoy also testified that he and Olsen helped each other on their cases and that Olsen had access to various portions of McCoy’s discovery when they worked together.

McCoy was charged with three counts of first degree robbery of financial institutions. After a jury trial, he was found guilty as charged on all three counts. McCoy was sentenced within the standard range for 150 months. McCoy appeals.

ANALYSIS
Sufficiency of the Evidence

McCoy contends there was insufficient evidence to prove beyond a reasonable doubt that he was guilty of all three counts of first degree robbery of financial institutions. But his argument is unconvincing. Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits a rational trier of fact to find the essential elements of a crime beyond a reasonable doubt.[1] A claim of insufficiency admits the truth of the State’s evidence and all reasonable inferences gleaned therefrom.[2] Circumstantial evidence is as reliable as direct evidence.[3] And, an appellate court defers to the trier of fact regarding witness credibility or conflicting testimony.[4]

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.[5]

“Any force or threat, no matter how slight, which induces an owner to part with his property is sufficient to sustain a robbery conviction.”[6] In State v. Collinsworth, a defendant who told a bank teller to “[g]ive me your hundreds,” “no dye packs,” argued that he did not display a weapon and therefore may only be held liable for theft, not robbery. In rejecting that argument, the court stated, “No matter how calmly expressed, an unequivocal demand for the immediate surrender of the bank’s money, unsupported by even the pretext of any lawful entitlement to the funds, is fraught with the implicit threat to use force.”[7] The Collinsworth court noted that the defendant “made a clear, concise, and unequivocal demand for money. He also reiterated his demand or told the teller not to include `bait’ money or `dye packs,’ thereby underscoring the seriousness of his intent.”

The words used in each of the three robberies of the financial institutions were unequivocal. At Sterling Savings Bank, McCoy declared, “This is no joke. This is a robbery. Give me the money.” At US Bank, McCoy twice made a clear demand for money accompanied by the words that “this is not a game.” The written note McCoy handed to the teller at Key Bank used the word “holdup” accompanied by the words, “Hurry up. This is a holdup,” which were likewise unequivocal.

McCoy argues that in none of the incidents did the tellers actually feel threatened. The testimony at trial, however, contradicts this contention. Willey of Sterling Savings Bank was described as being “very, very stressed out.” Fung at US Bank appeared “a little disturbed” and “shaken” up by the incident. And, Le of Key Bank described the incident as seeming to last forever even though it only lasted from one to three minutes.

But actual fear on the part of the tellers does not have to be specifically proven. As often noted, “the law, in odium spoliatoris, will presume fear where there appears to be just ground for it.”[8] Here, the evidence was sufficient to warrant such a presumption.

Statement of Additional Grounds

McCoy raises several issues in his Statement of Additional Grounds (SAG), including State misconduct, flawed identification by a witness, and ineffective assistance of counsel. None of his claims have merit.

First, the trial court properly denied McCoy’s motion to dismiss for State misconduct or mismanagement. McCoy argues that the information Olsen obtained was akin to attorney work-product as McCoy was representing himself pro se and consulting with Olsen. After an evidentiary hearing, the trial court found that Olsen may have served as a “jail house lawyer” but that fact did not actually transform him into one and that any work that he performed with McCoy was not protected under the work-product doctrine. Once Olsen came forward to share his information with the State, the better course of conduct would have been to separate Olsen and McCoy. Thus, any suspicion that the State was using Olsen to garner McCoy’s trial tactics and defenses would be transparently baseless. However, Olsen testified that he had no conversations with McCoy after he had informed the police of the contents of their conversations regarding the bank robberies. The assertion that no further information was obtained from Olsen between the time the detective spoke with him and when Olsen’s statement was recorded approximately ten days later, was buttressed by the detective’s testimony, and found credible by the trial court. Additionally, McCoy’s claim that the State committed misconduct by serving him responses to his motion just before trial is devoid of merit. The State followed proper procedure in filing timely responses to McCoy’s pretrial motions.

McCoy contends that his in-court identification by witnesses was tainted by a biased photomontage shown to them before trial. The photomontage was created from video surveillance cameras at the bank. However, McCoy fails to articulate how he was prejudiced. Moreover, each witness was extensively cross-examined by counsel regarding the photomontage procedure and their credibility was a matter for the jury to determine. We do not review credibility determinations on appeal.[9]

McCoy argues that he received ineffective assistance of counsel because of his attorney’s failure to request a CrR 3.5 hearing to suppress Olsen’s testimony, in advising McCoy to take the stand, thus permitting the jury to learn of his in custody status and criminal history, and finally for failure to impeach one of the witnesses with evidence of prior misconduct. “To prevail on a claim of ineffective assistance of counsel, a defendant must establish both ineffective representation and resulting prejudice.”[10] The issue of Olsen’s testimony has already been addressed. McCoy’s testimony alleging he was at the bank earlier in the day was crucial to rebut the State’s evidence of his palm print found at the teller’s station that was robbed. The decision to have McCoy testify could be construed to be a trial tactic. Legitimate trial strategy or tactics cannot serve as a basis for a claim of ineffective assistance of counsel.[11] McCoy’s impeachment was in accord with the rules of evidence. McCoy contends that he should have been able to question in depth the prior bad acts by a bank teller who was subsequently dismissed from the bank. On direct, the prosecution elicited teller Le was subsequently dismissed for embezzlement of bank funds. Inasmuch as the jury heard this testimony, they could draw their own conclusions regarding Le’s credibility.

Finally, McCoy’s SAG arguments regarding insufficient evidence were adequately presented and argued in his appellate counsel’s brief and have already been addressed in this opinion.

The trial court is affirmed.