No. 52144-6-I.The Court of Appeals of Washington, Division One.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-10167-1. Judgment or order under review. Date filed: 04/04/2003. Judge signing: Hon. Ronald Kessler.
Counsel for Appellant(s), Eric J. Nielsen, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), E Bradford Bales, King Co Pros Aty Ofc, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
PER CURIAM.
Jeremy Simmons appeals from his conviction for robbery in the first degree with a deadly weapon. He argues that the evidence was insufficient to prove he was armed with a deadly weapon and that he was entitled to a unanimity instruction as to the alternative means of committing robbery. Because substantial evidence supports the jury’s finding that he was armed with a deadly weapon, we affirm.
FACTS
In November, 2002 Amanda Allen and her grandmother went to a 7-11 store to buy a money order to pay her rent. While at the store, Allen quickly thumbed through the almost $1,000 in her wallet before buying a $500 money order. Her grandmother drove Allen back to her apartment. As she got out of the car, someone approached her and, as she testified, `I had a gun put to my head.’ Report of Proceedings (RP) (Mar. 6, 2003) at 6. Allen testified that she could see the barrel of the gun and that it was chrome, although she only saw it out of the corner of her eye for a split second. She described the weapon as heavy and cool. Allen testified that she was familiar with firearms because her uncle collected guns and had shown them to her. Her grandmother testified that she saw that the item held to Allen’s head was silver. A neighbor who viewed the incident from a nearby balcony recounted that the suspect had walked up to the car, `pulled out his gun,’ pointed it inside the vehicle, and then ran off. RP (Mar. 6, 2003) at 30. He also described the weapon as a silver firearm.
Simmons argues that the evidence was insufficient to establish beyond a reasonable doubt that the item held to Allen’s head was a gun `in fact.’ Simmons contends that since no gun was recovered, the State was required to provide detailed descriptions of the alleged firearm. The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that Simmons was armed with a real gun during the commission of this crime. State v. Bowman, 36 Wn. App. 798, 803, 678 P.2d 1273 (1984); State v. Goforth, 33 Wn. App. 405, 411, 655 P.2d 714 (1982).
Here, Allen described the gun as heavy, cool, and chrome. All three witnesses testified to it being silver in color. Allen testified that she was familiar with guns, and when asked how she knew it was a gun, testified with apparent certainty: `I know what I felt, I know what I saw . . . you just know.’ RP (Mar. 6, 2003) at 14. The neighbor who observed the whole incident matter-of-factly related seeing Simmons pull a gun and revealed no hesitation about his observations. In Bowman, the victim testified that there was no question in her mind that the apparent gun was real; there appears to have been no evidence of her familiarity with firearms and there appear to have been no other witnesses. Bowman, 36 Wn. App. at 803. The quantum of evidence here, particularly the corroborative testimony of the neighbor, exceeds the evidence relied upon in Bowman. The jury’s finding that Simmons committed the robbery while armed with a deadly weapon is supported by substantial evidence.
This conclusion also defeats Simmons’ argument that he was entitled to a unanimity instruction as to the alternative means of committing robbery. As Simmons acknowledges, the failure to give a unanimity instruction warrants reversal only where there is insufficient evidence to support both alternative means. State v. Ortega-Martinez, 124 Wn.2d 702, 707-08, 881 P.2d 231 (1994). Here there was substantial evidence establishing that Simmons was either armed with a deadly weapon or with what appeared to be a deadly weapon. The trial court was not required to give a unanimity instruction.
We affirm.
KENNEDY, COLEMAN and APPELWICK, JJ.