No. 19415-9-III.The Court of Appeals of Washington, Division Three. Panel Nine.
Filed: December 11, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Douglas County, No. 001000484, Hon. John J. Hotchkiss, June 12, 2000, Judgment or order under review.
Counsel for Appellant(s), Paul J. Wasson II, Attorney At Law, 2521 W Longfellow Ave, Spokane, WA 99205-1548.
Counsel for Respondent(s), Eric C. Biggar, Douglas County Prosecutor’s Office, P.O. Box 360, Waterville, WA 98858.
DENNIS J. SWEENEY, J.
This simple shoplifting case escalated into a first degree robbery after Anthony Ming-John Pong pulled a stun gun on a security officer while attempting to flee. The jury instructions allowed the jury to convict Mr. Pong of both theft and assault, in addition to first degree robbery. The question before us is whether the theft and assault were essential elements of — and therefore merged with — the first degree robbery.
We conclude that they were and therefore vacate those convictions and remand for resentencing. We affirm the first degree robbery conviction, rejecting Mr. Pong’s assignments of error to certain evidentiary rulings and the court’s wording of two instructions.
FACTS
Juanita Riedel is a `loss prevention officer’ at the Food Depot in East Wenatchee, Washington. She saw Anthony Ming-John Pong put some batteries in his pocket and cold tablets and coffee creamer in his basket and head for the checkout line. She did not see him check out. She called for back-up and prepared to challenge Mr. Pong. Assistant Manager Jim Hunt joined Ms. Riedel. They stopped Mr. Pong outside and asked him to return to the store. Mr. Pong put his shopping bag into the bed of his pickup and started to walk back with them. He then reached under his jacket and brought out a `black square box looking thing’ about the size of a cell phone, and suddenly took off running. Report of Proceedings (RP) at 16. Mr. Hunt and another store employee gave chase. Ms. Riedel joined the pursuit from another direction. She saw Mr. Pong running toward her across a parking lot. She ran toward him. When they were about two feet apart, Ms. Riedel yelled for Mr. Pong to stop and felt something hard touch her arm. She saw `a kind of blue flame,’ and heard a sort of `snapping and buzzing’ sound. RP at 22. She jumped back, fearing that Mr. Pong had zapped her with a stun gun. In fact, he missed. Mr. Pong continued to flee. Ms. Riedel returned to Mr. Pong’s pickup. There, a police officer handed over three packs of batteries and some cold tablets.
The State charged Mr. Pong with first degree robbery, third degree theft, and third degree assault.
The case was tried to a jury. Mr. Pong objected to the admission of the batteries and cold pills based on the State’s failure to document a chain of custody. The court admitted both exhibits.
The court also admitted a stun gun. Deputy Sheriff Michael Wagg testified that he used a stun gun for 2- to 3 years in the 1980s. Deputy Wagg explained what stun guns look and sound like and their physiological effects. The defense objected that the testimony was irrelevant. The court responded by asking for additional foundation. Deputy Wagg testified that most stun guns are substantially similar. The court then admitted the stun gun for illustrative purposes only. Mr. Pong moved to dismiss at the close of the State’s case. He argued that the State had not proved that Mr. Pong had failed to pay for the items.
The court denied the motion because the State showed that Mr. Pong put the items in his pocket inside the store. Mr. Pong was the only defense witness. He admitted stealing the batteries and cold pills. He denied using force of any kind. And he denied owning or using a stun gun. He said he removed his cell phone from his belt to keep it from falling after he made the poor decision to flee. Mr. Pong also moved for a mistrial based on the following exchange during the State’s cross-examination of him:
Q You indicated that you . . . live in Lake Chelan with your mother. Did I misunderstand?
A Well, I am using her address currently.
Q But you don’t currently live with her?
A Currently I am incarcerated.
RP at 160. The court denied the motion. And it instructed the jury that the fact the defendant may be in custody was entirely irrelevant and should be disregarded.
Mr. Pong objected to certain jury instructions. Instruction No. 5 says store personnel can detain a person if they have `reasonable grounds’ to believe the person was committing or attempting to commit shoplifting. Instruction No. 7 is the `to convict’ instruction for first degree robbery. It is not the Washington Pattern Jury Instruction version.
The jury found Mr. Pong guilty of first degree robbery, third degree theft, and third degree assault.
SUFFICIENCY OF THE EVIDENCE
A defendant may move to dismiss at the close of the State’s evidence for failure of proof of the corpus delicti. State v. Johnston, 100 Wn. App. 126, 132, 996 P.2d 629 (citing State v. Jackson, 82 Wn. App. 594, 607, 918 P.2d 945 (1996)), review denied, 141 Wn.2d 1030 (2000). He waives, however, his challenge to the sufficiency of the evidence as it stood at that point by proceeding with his own case in chief. This is because we consider the entire record on appeal. Johnston, 100 Wn. App. at 132. Mr. Pong argued that, because the State failed to present evidence that he did not pay for the items, it had failed to prove theft. The court ruled that Ms. Riedel’s testimony that she observed him stuff the batteries under his coat was sufficient to put the issue of theft to the jury. Mr. Pong then admitted stealing the items during his case in chief. We will not then consider this assignment of error.
MERGER
Mr. Pong next argues that his convictions for assault and theft should have merged with his first degree robbery conviction. His assignment of error implicates constitutionally protected rights and it is, therefore, reviewable despite his failure to raise the issue at trial. This is because the constitutional prohibition against double jeopardy is the foundation for the merger doctrine. State v. Parmelee, ___ Wn. App. ___, 32 P.3d 1029 (2001).
The Fifth Amendment to the United States Constitution guarantees that no person shall `be twice put in jeopardy of life or limb’ for the same offense. It is applicable to the states through the Fourteenth
Amendment. In re Pers. Restraint of Fletcher, 113 Wn.2d 42, 46, 776 P.2d 114 (1989) (citing Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)). But the double jeopardy clause is not violated if the Legislature specifically authorizes multiple punishments. Nothing in the Constitution prevents a legislative body from punishing separately each component of a crime and also the completed, constituted offense. Garrett v. United States, 471 U.S. 773, 779, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985) (citing Albrecht v. United States, 273 U.S. 1, 11, 47 S.Ct. 250, 71 L.Ed. 505 (1927)).
The question is whether the Legislature intended to punish the same conduct twice under different criminal provisions. Washington applies the `same evidence’ test to determine legislative intent. State v. Calle, 125 Wn.2d 769, 777-78, 888 P.2d 155 (1995). By this test, a defendant cannot be convicted of offenses that are identical both in fact and in law. Id. at 777. The convictions stand, however, if there is an element in each offense which is not included in the other, and if proof of one offense would not necessarily also prove the other. State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983); Calle, 125 Wn.2d at 777.
The same evidence test is a rule of statutory construction only. And so it cannot be applied in the face of a contrary legislative intent. Calle, 125 Wn.2d at 778; State v. Valentine, 108 Wn. App. 24, 28, 29 P.3d 42 (2001). That is, if there is a clear legislative intent to punish the same conduct twice, we must give effect to that legislative intent. Under the same evidence test, even where the offenses involve different legal elements, if proof of one will always establish the other, the two offenses merge. Calle, 125 Wn.2d at 779; Valentine, 108 Wn. App. at 27. The policy behind this is that it is unjust and oppressive to pyramid prosecutions for a single offense. State v. Johnson, 92 Wn.2d 671, 678, 600 P.2d 1249 (1979), cert. dismissed, 446 U.S. 948, 100 S.Ct. 2179, 64 L.Ed.2d 819 (1980).
The common law merger doctrine is another method of statutory construction often used to determine whether the Legislature intended to punish the same conduct under two different criminal provisions. Vladovic, 99 Wn.2d at 420-21. Merger applies when proof of one offense elevates another crime to a higher degree. State v. Johnson, 96 Wn.2d 926, 936, 639 P.2d 1332 (1982), overruled on other grounds by Calle, 125 Wn.2d 769. An additional conviction for that offense will not be allowed to stand unless it involves some injury which is separate and distinct from and not merely incidental to the crime of which it forms an element. State v. Prater, 30 Wn. App. 512, 515-16, 635 P.2d 1104
(1981).
The State urges that, because the sentences here are concurrent, any harm following these multiple convictions is avoided. Double jeopardy is implicated, however, by multiple convictions arising from the same act, even if concurrent sentences are imposed. Calle, 125 Wn.2d at 774-75; State v. Read, 100 Wn. App. 776, 793, 998 P.2d 897 (2000). This recognizes the collateral consequences of conviction. Ball v. United States, 470 U.S. 856, 864-65, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). With these canons of construction in mind, we turn to the facts here.
The Assault
It is sufficient to sustain a robbery conviction if force is used to retain possession of the property, resist apprehension, or facilitate escape. State v. Handburgh, 119 Wn.2d 284, 292, 830 P.2d 641 (1992). Robbery includes any violence or fear that is threatened or inflicted during flight after a completed or attempted theft. Id.
But multiple convictions are appropriate only when the force or fear results in a separate and distinct injury besides that which is incidental to the greater crime. Johnson, 92 Wn.2d at 680. As applied here, an assault merges into first degree robbery unless the act of assault is separate and distinct from the force required for the robbery. Prater, 30 Wn. App. at 516; Johnson, 92 Wn.2d at 680; accord State v. Fagundes, 26 Wn. App. 477, 485-86, 614 P.2d 198, 625 P.2d 179
(1980). Statutory third degree assault is defined in part as assault with intent to prevent or resist lawful apprehension or detention. RCW 9A.36.031(1)(a). It includes assault of a store employee attempting to detain a suspected thief. State v. Herrera, 95 Wn. App. 328, 332, 977 P.2d 12 (1999). Here, the assault on Ms. Riedel was precisely the force required to prove robbery. The offenses then merge.
The Theft
Mr. Pong argues that the theft also merges with the first degree robbery.
The location of offenses within the statutory scheme is also helpful in this analysis as an indication of legislative intent. Calle, 125 Wn.2d at 780.
The Legislature included both theft and robbery under chapter 9A.56
RCW. Johnston, 100 Wn. App. at 139. (Theft is at RCW 9A.56.020; robbery is at RCW 9A.56.190.) The courts treat both shoplifting and robbery as subsets of theft in the context of crimes of dishonesty for impeachment purposes. See, e.g., State v. Schroeder, 67 Wn. App. 110, 114-15, 834 P.2d 105 (1992); State v. Brown, 113 Wn.2d 520, 552-53, 782 P.2d 1013, 787 P.2d 906, 80 A.L.R.4th 989 (1989). This suggests a legislative intent to treat a single taking as a single offense. Here, no separate harm resulted from the single taking of property. The State used that single taking to prove both the third degree theft and the robbery. And so again the offenses merge.
Because the offenses merge, the court should have instructed the jury that, if it found Mr. Pong guilty of the greater offense of robbery, it could not also find him guilty of the lesser offenses. Johnson, 92 Wn.2d at 680. This was not done. And the remedy is to vacate the superfluous convictions for theft and assault. Johnson, 92 Wn.2d at 681-82.
EVIDENTIARY RULINGS
Mr. Pong next assigns error to two of the courts evidentiary rulings — admission of the cold pills and batteries taken from the store and the stun gun. Standard of Review
We review a trial court’s evidentiary decisions for manifest abuse of discretion. We will not reverse absent a showing that the court’s exercise of discretion is `manifestly unreasonable or based upon untenable grounds or reasons.’ State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). Batteries and Cold Pills
Mr. Pong argues that the batteries and cold pills were admitted despite the absence of evidence of the chain of custody. Questions as to the chain of custody go to the weight of the evidence, not its admissibility. State v. Saunders, 30 Wn. App. 919, 922, 639 P.2d 222
(1982). Here, Ms. Riedel testified she received the items from the police officer. She identified them as the same items that were stolen from the store. She said she kept them in her possession and brought them to court. The court ruled that the chain of custody of the batteries and cold medication went to weight, not admissibility. Mr. Pong does not say how the admission of this evidence, even if erroneous, affected the outcome of the trial. He admitted stealing batteries and cold pills. And it is, therefore, difficult to see how viewing these items might have affected the jury’s findings on this issue. Whether one pack of batteries or an identical one was stolen makes no difference.
Stun Gun
Mr. Pong next argues that the stun gun was not relevant, given the absence of proof that he used a stun gun. Deputy Wagg brought a stun gun into court. The court admitted the device for illustrative purposes.
Evidence offered for purely illustrative purposes must be relevant. This means it must be both material to the ultimate fact to be proved and shown to be substantially like, and similar in function and operation to, the thing in issue. State v. Gray, 64 Wn.2d 979, 983, 395 P.2d 490
(1964); State v. Mitchell, 56 Wn. App. 610, 613, 784 P.2d 568 (1990).
Here, Deputy Wagg’s stun gun was relevant to a material issue — whether Ms. Riedel saw a stun gun or merely a cell phone. The question is whether testimony that all stun guns look alike is sufficient foundation that the exhibit is similar to the actual object used in the crime.
In those cases where illustrative evidence has been held properly admitted, the foundation was laid by eyewitnesses who identified it as similar to the object seen at the scene of the crime. See, e.g., State v. Allen, 72 Wn.2d 42, 43, 431 P.2d 593 (1967). For instance, in State v. Duree, the court admitted for illustrative purposes a knife that was found in a drawer in the room where the murder was committed. State v. Duree, 52 Wn.2d 324, 324 P.2d 1074 (1958). Two eyewitnesses testified that it looked like the knife used by the defendant when he stabbed the victim. A police officer stated it looked like the butcher knife he saw in the room at the time he found the victim. And the autopsy surgeon testified that the blade would fit perfectly with the wound. Id. at 327.
Deputy Wagg testified about the appearance, sound, and effect of stun guns generally. He held it up and pointed out the working parts to the jury. Again this was over the only defense objection that insufficient foundation had been laid that the exhibit was similar to the one at issue.
The deputy testified that all stun guns look alike. Only then did the prosecutor offer the exhibit for illustrative purposes.
Here, the court denied the State’s request to demonstrate the stun gun in court, based on its ruling that Deputy Wagg could not lay a proper foundation. The court did permit Deputy Wagg to show it to the jury and testify about it, conditioned on Deputy Wagg’s testifying that all stun guns are alike.
The court relied on Mitchell for its decision to admit the stun gun. Mitchell is a felony eluding case, in which the defendant claimed he could not hear the patrol car siren. The arresting officer said that all sirens sound alike. On the basis of that testimony, the court allowed the State to sound a siren for illustrative purposes. Mitchell, 56 Wn. App. at 613 n. 3.
The challenge to this evidence was its relevance. The stun gun here was relevant. And the court did not abuse its considerable discretion by admitting it for illustrative purposes. Carson v. Fine, 123 Wn.2d 206, 226, 867 P.2d 610 (1994).
JURY INSTRUCTIONS
Mr. Pong next claims that the court erroneously instructed the jury on the elements of the crimes. Standard of Review
We review the wording of jury instructions by a trial judge for abuse of discretion. State v. Bius, 23 Wn. App. 807, 810, 599 P.2d 16 (1979). Instructions are sufficient if, read as a whole, they properly inform the jury of the applicable law. State v. McLoyd, 87 Wn. App. 66, 71, 939 P.2d 1255 (1997), aff’d sub nom. State v. Studd, 137 Wn.2d 533, 973 P.2d 1049 (1999).
Instruction No. 5 — Merchants — Unlawful Detention — Shoplifting
The court’s instruction on unlawful detention comes from RCW 9A.16.080, which provides a defense for mercantile establishments against charges of unlawful detention of suspected shoplifters. Mr. Pong complains that the statute requires not just reasonable grounds for the detention, but also detention in a reasonable manner and for a reasonable time. He contends the instruction was both incomplete and inaccurate, because it only mentions reasonable grounds.
The identical language was approved as a correct statement of the law in a third degree assault case. State v. Jones, 63 Wn. App. 703, 705-06, 821 P.2d 543 (1992).
Third degree assault requires a lawful stop. Instruction No. 5 instructed the jury that a store security guard with reasonable grounds can lawfully detain a shoplifting suspect. The statute does provide a defense for mercantile establishments sued for unlawful arrest only if the detention is reasonable in manner and time. RCW 9A.16.080. But these elements were not at issue here. And both considerations are therefore superfluous. Instruction No. 5 correctly stated the law and was appropriate taken in context of the instructions as a whole.
Instruction No. 7 — Elements Instruction
Next Mr. Pong notes that the elements instruction for first degree robbery uses the word `escape.’ But the statute uses the word `flight.’ He argues that these are not equivalent terms because the RCW attaches a definite meaning to the word `escape.’ RCW 9A.76.110-.130. Mr. Pong’s conduct was not an escape. Therefore, he contends, the instruction was incomplete and misleading and must be presumed prejudicial.
The first degree robbery statute does use the word `flight,’ not `escape.’ Courts, however, use the words interchangeably in this context. See, e.g., Handburgh, 119 Wn.2d at 291. Before the Legislature deleted the language from the robbery statute, it said the use of force or fear `merely as a means of escape’ did not constitute robbery. Rem. Rev. Stat. 2418, cited in Handburgh, 119 Wn.2d at 291.
In a different context, the distinction between `flight’ and `escape’ might be relevant. But Mr. Pong fails to explain why the distinction is important here. The common meaning of either word is close enough that it could not have affected the outcome here given this factual scenario. State v. State Credit Ass’n, Inc., 33 Wn. App. 617, 625, 657 P.2d 327
(1983) (statutory analysis must take into account the limitations inherent in the language).
MISTRIAL Standard of Review
The trial judge is best suited to pass upon the prejudice of a statement. State v. Weber, 99 Wn.2d 158, 166, 659 P.2d 1102 (1983). We therefore review the trial court’s rulings on allegations of prosecutorial misconduct for abuse of discretion. State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967, cert. denied, 528 U.S. 922, 120 S.Ct. 285, 145 L.Ed.2d 239 (1999).
No Presumption of Prejudice
The burden is on the defendant to show that the prosecutor’s conduct was both improper and prejudicial. Finch, 137 Wn.2d at 839. Even if the conduct was improper, prejudice is not presumed. State v. Souther, 100 Wn. App. 701, 714, 998 P.2d 350, review denied, 142 Wn.2d 1007
(2000). The conviction will be reversed only on a showing of a substantial likelihood that the alleged prosecutorial misconduct affected the verdict. CrR 7.6(a); State v. Luvene, 127 Wn.2d 690, 701, 903 P.2d 960
(1995). That is, the defendant must show that the curative instruction given to his jury was not effective.
The prejudice showing is not satisfied solely by showing that the jury became aware that the defendant was incarcerated. State v. Gosser, 33 Wn. App. 428, 435, 656 P.2d 514 (1982) (jury saw defendant shackled in hallway; no request for curative instruction).
In general, the giving of a curative instruction will end the inquiry, unless the misconduct is so flagrant that a new trial is the only remedy. State v. Copeland, 130 Wn.2d 244, 284, 922 P.2d 1304 (1996). Where Mr. Pong was living at the time of trial had no relevance to anything. And his address had been sensitively disposed of on direct. (Mr. Pong said he was using his mother’s address, `[j]ust for a brief period of time, since I have moved out of my trailer.’ RP at 113.) In State v. Jordan, after two jurors saw the defendant in handcuffs, the defense freely acknowledged that the deputy escorted the defendant in front of the jurors `nonmaliciously, quite by accident.’ State v. Jordan, 79 Wn.2d 480, 482, 487 P.2d 617 (1971). Here, the trial court found that the prosecutor deliberately elicited the information, but that that was irrelevant. The only question was whether a curative instruction could be crafted to neutralize any prejudice and avoid the need for a mistrial.
The court concluded that it could and immediately instructed the jury to ignore the reference, giving a clear explanation of why it was irrelevant.
The court did not abuse its discretion in denying a mistrial.
We vacate the theft and assault convictions and remand for resentencing. We affirm the conviction for robbery.
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.
WE CONCUR: KURTZ, C.J. KATO, J.