STATE v. WALLS, 52776-2-I (Wash.App. 10-20-2003)

No. 52776-2-IThe Court of Appeals of Washington, Division One.
Filed: October 20, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County Docket No: 02-1-00652-5 Judgment or order under review Date filed: 08/06/2002

Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St. Ste 488, Tacoma, WA 98402-3600.

Tania Walls (Appearing Pro Se), c/o Probation Officer, 755 Tacoma Ave S, Tacoma, WA 98402.

Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.

PER CURIAM.

Tania Walls was arrested after she and others were accused of beating a man into unconsciousness, restraining him against his will, and forcibly taking money from him. Walls was charged with one count of first degree kidnapping and one count of first degree robbery. Although she was acquitted on the kidnapping charge, Walls was found guilty of the lesser degree crime of second degree robbery. In this appeal, Walls contends for the first time that she was deprived of her constitutional right to a unanimous jury verdict because, even though the State introduced evidence at her trial that money was unlawfully taken from the victim at two different times and places, the court failed to give a unanimity instruction under State v. Petrich.[1] While this issue of constitutional magnitude is properly before us, the evidence proffered by the State established that the two incidents were part of a continuing course of criminal conduct. Accordingly, we conclude that a unanimity instruction was not required. Likewise, we reject Walls’ challenge to the sufficiency of the evidence. We therefore affirm.

FACTS
Walls invited a 72-year-old man, D.F., to live at her residence. After things didn’t work out, D.F. decided to move elsewhere. The very next day, on February 4, 2001, Walls contacted D.F. at a local bowling alley and the two of them drove off in a van driven by Lee Grisby. When D.F. returned to the bowling alley the following night (February 5, 2001), he was battered and bruised. Police were contacted after D.F. accused Walls and others of restraining him against his will and forcibly taking his money. Ligature marks were observed on D.F.’s wrists that were consistent with having been tied up. During the subsequent investigation, police found D.F.’s coat and the torn-up pieces of a $425 check belonging to D.F. in the suspect van. D.F.’s social security card was also found in Walls’ purse. Walls was charged with one count of first degree kidnapping and one count of first degree robbery based on the ordeal allegedly suffered by D.F.

At Walls’ jury trial, D.F. positively identified Walls as the person who lured him into a van and, along with others, threatened him with bodily harm if he didn’t give Walls some money. D.F. testified that after he entered the van Walls and Grisby demanded that he pay Walls $750 for rent and that they would not release him until he paid the money. When he refused, they threatened to harm him. D.F. stated that at some point they stopped and Walls brought in another person to help coerce him to pay the money. According to D.F., he was forced to take off his clothing at which point his checkbook and a wallet containing $350 in cash were taken. D.F. stated that, during this confrontation, he was knocked out. Upon regaining consciousness, D.F. realized that he was back at Walls’ residence, naked except for a blanket over him, and tied to a bed. D.F. testified that Walls returned with his clothing on the morning of February 5 and told him that they were taking him to his bank so that he could get more money. D.F. stated that they went to the bank and that he signed two checks, one for $425 that the bank refused to cash due to insufficient funds in his checking account, and the other for $150. D.F. testified that he gave the $150 to Walls. D.F. was eventually able to escape after they once again dropped him off at Walls’ residence.

Walls gave a dramatically different account of what transpired on February 4 and February 5. According to Walls, D.F. voluntarily chose to join her and Grisby as they drove around the Tacoma area talking, listening to music, and stopping for drinks. Walls testified that she didn’t see anyone threaten or harm D.F. on February 4 or February 5. Walls denied taking any money from D.F. on either day. The jury found Walls not guilty of the kidnapping charge and guilty of the lesser degree offense of second degree robbery. This appeal followed.

DECISION
We first decide whether the trial court’s failure to give a unanimity instruction violated Walls’ constitutional right to a unanimous jury verdict.[2] ‘When the evidence indicates that several distinct criminal acts have been committed, but defendant is charged with only one count of criminal conduct, jury unanimity must be protected.’[3] To ensure jury unanimity when there is evidence of numerous criminal acts, the State must elect a single act upon which it will rely for conviction, or the court must instruct the jury that all must agree on the specific criminal act.[4] The rationale for Petrich’s protections in multiple act cases stems from possible confusion as to which of the acts a jury has used to determine a defendant’s guilt, where the evidence tends to show multiple commissions of a single crime.[5] ‘But the State need not make an election and the trial court need not give a unanimity instruction if the evidence shows the defendant was engaged in a ‘continuing course of conduct’.’[6] To determine whether a charge can be characterized as one continuing offense rather than several distinct acts, ‘the facts must be evaluated in a commonsense manner.’[7]

Walls contends that her right to a unanimous jury was violated by the court’s failure to give a unanimity instruction. Walls argues that because two discrete acts of robbery were alleged, one when cash was taken on February 4 and the other occurring at the bank on February 5, a rational juror could have had a reasonable doubt as to whether one of the acts had been proven beyond a reasonable doubt. Thus, she argues her robbery conviction should be reversed. We disagree.

Walls appears to acknowledge that, had the State prevailed on the kidnapping charge, the two acts of taking occurring on February 4 and 5 might well be viewed as part of a continuing course of conduct. But because the jury acquitted her of kidnapping D.F., Walls argues ‘the two acts can only be viewed as distinct.’[8] This argument, however, fails to recognize that a variety of factors may affect a jury’s verdict including mistake, compromise and lenity.[9] The jury has an ”unreviewable power . . . to return a verdict of not guilty for impermissible reasons.”[10] Here the State presented evidence that, if believed, shows that D.F. was restrained without his consent from before the first taking on February 4 until after the second taking on February 5. And while the two takings occurred at different times and places, they were committed for the same ultimate purpose. Walls wanted $750 from D.F. and refused to release him until she either received that payment or had whatever funds remained in D.F.’s checking account. When viewed in a commonsense manner, the two incidents of taking were, therefore, part of an ongoing course of criminal conduct. Accordingly, the trial court was not required to give a unanimity instruction.[11]

Walls next contends that sufficient evidence was not presented to convict her of second degree robbery. Evidence is sufficient if, when viewed in the light most favorable to the State, any rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt.[12] To convict Walls of second degree robbery, the State was required to prove beyond a reasonable doubt that she or an accomplice unlawfully took personal property from the person or presence of D.F. against his will and by the use or threatened use of force.[13]

Walls’ argument appears to be at least partially based on her belief that D.F.’s testimony regarding what happened over the two-day period was highly suspect. However, Walls appears to misconceive the nature of our review in a sufficiency challenge. We cannot reweigh the evidence presented below. ‘This court must defer to the trier of fact on issues involving conflicting testimony, credibility of the witnesses, and the persuasiveness of the evidence.’[14] Viewing the evidence presented at Walls’ trial in the light most favorable to the State, it was sufficient to support her conviction of second degree robbery.

Affirmed.