State Of Washington v. D.l.n., 11/28/96

• Court: Court of Appeals of Washington
• Decided: September 16, 2013
• Docket: 69467-7
• Status: Unpublished

Opinion

r-o (f.

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON l?

STATE OF WASHINGTON, No. 69467-7-I Respondent, 03 DIVISION ONE v.

D.L.N. (D.O.B. 11/28/1996), UNPUBLISHED OPINION

Appellant. FILED: September 16, 2013

Leach, C.J. — D.L.N, appeals his convictions for two counts of robbery in

the first degree, the second as an accomplice. He asserts the trial court erred in

admitting hearsay evidence and lay opinion testimony. He also challenges the

sufficiency of the evidence and the adequacy of the trial court's written findings

under JuCR 7.11(d). Finding no error, we affirm.

Background

On April 17, 2012, around 5:00 p.m., Brandon Parrish and his girl friend,

Tawney Fournier, approached a group of six to eight individuals near the Kent

library. Parrish "asked them about some pot." Some of the individuals said that

they had marijuana and asked Parrish and Fournier to follow them to the Kent

Transit Center about two blocks away to make the transaction. The group

walked together to the transit center, with Parrish and Fournier walking together

an "arm's length distance" behind them. Parrish and Fournier saw the group No. 69467-7-1/2

members talking among themselves but could not hear their discussion. When

they arrived at the transit center, the group members asked Parrish to take out

his money to buy the marijuana. When Parrish took out a twenty dollar bill and a

ten dollar bill, D.L.N, grabbed them and fled. Parrish immediately ran after him.

As D.L.N, grabbed the money from Parrish's hand, someone in the group

also took Fournier's phone from her hand, and a different person punched her in

the eye, causing her to fall to the ground. When Parrish caught up with D.L.N,

near the transit center and demanded his money back, D.L.N, threatened him

with a knife. Transit center security guard Phyllis Cratic intervened between

them, and D.L.N, fled. Cratic called 911 and reported a robbery. Parrish caught

D.L.N, again, and D.L.N, again pulled out a knife and waved it near Parrish's gut.

Parrish then returned to Fournier. D.L.N, left the scene. At no time did D.L.N,

ask for Cratic's or the police's help against Parrish or deny having Parrish's

money.

The following day, April 18, 2012, police arrested D.L.N. They recovered

a knife from D.L.N., which Cratic identified as the knife D.L.N, displayed the

previous day. Following the arrest, D.L.N, waived his Miranda1 rights and agreed

to speak with Officer David Ghaderi. D.L.N, told Ghaderi that someone took

money from Parrish and that he (D.L.N.) grabbed it and handed it off and that he

1 Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L Ed. 2d 694 (1966).

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pulled his knife in self-defense when Parrish attacked him. D.L.N, later denied

admitting to a crime or committing one.

After a fact finding hearing, the court found D.L.N, guilty as charged of two

counts of robbery in the first degree: the first count for robbing Parrish and the

second count as an accomplice in the robbery of Fournier. The court imposed a

standard range sentence of 103-129 weeks on each count, to be served

consecutively.

D.L.N, appeals.

Analysis

Recorded Recollection

D.L.N, argues that the trial court abused its discretion by admitting

hearsay evidence under ER 803(a)(5) when the witness did not have insufficient

memory to be able to testify fully about the matter. When the prosecutor

questioned Parrish during fact finding, Parrish could not remember certain details

of the day of the robbery and was unable to refresh his memory by reviewing his

statement to police made two days after the incident. First, Parrish was unable

to recall if anyone intervened after Parrish wrestled D.L.N, to the ground after

chasing him, though he remembered other details of the incident. Second,

Parrish did not remember if anyone followed him to the location where D.L.N.

displayed the knife. The court allowed the prosecutor, over defense counsel's

objection, to read into the record, "for substantive purposes," sentences from

Parrish's statement to police about the details that Parrish could not recall.

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D.L.N, argues that in admitting this hearsay, the court "committed evidentiary

error" in violation of ER 803(a)(5).

Although hearsay is generally inadmissible,2 ER 803(a)(5) provides an

exception to the hearsay rule for

[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witnesses] memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

(Emphasis added.)

ER 803(a)(5) excludes a recorded recollection from the hearsay rule and

allows its admission when

(1) the record pertains to a matter about which the witness once had knowledge, (2) the witness has an insufficient recollection of the matter to provide truthful and accurate trial testimony, (3) the record was made or adopted by the witness when the matter was fresh in the witness's memory, and (4) the record reflects the witness's prior knowledge accurately.131 We review the admission of statements under ER 803(a)(5) for abuse of

discretion.4 "An abuse of discretion occurs only when no reasonable person

would take the view adopted by the trial court."5

2 ER 802. 3 See State v. White. 152 Wn. App. 173, 183, 215 P.3d 251 (2009) (citing State v.Mathes. 47 Wn. App. 863, 867-68, 737 P.2d 700 (1987)). 4White. 152 Wn. App. at 183. 5White. 152 Wn. App. at 183-84.

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D.L.N, first argues that Parrish did not have an insufficient recollection of

"the matter" and thus cannot satisfy ER 803(a)(5)'s second requirement. D.L.N,

asserts that ER 803(a)(5) allows reading a prior statement into the record only

when the witness cannot remember the incident, and "not simply when the

witness cannot recall and express the details of an incident in the way that the

prosecutor believes the witness has previously done, and that the State deems

most inculpatory." During fact finding, Parrish remembered his altercation with

D.L.N, but could not recall details he gave police two days after the incident but

five months before the adjudicatory hearing. He testified that he could not recall

these details, even after reviewing his prior statement to police. D.L.N, does not

dispute that the State established ER 803(a)(5)'s other three requirements.

D.L.N.'s argument lacks merit. ER 803(a)(5) provides an exception in

cases where a witness cannot testify "fully" because of the gap between

statements taken shortly after the incident and the witness's testimony at trial. A

showing of incompleteness of recollection is sufficient to admit a statement under

the rule. Because Parrish could not recall the details of the events "fully and

accurately," the trial court properly admitted the evidence.

D.L.N, relies principally on State v. Floreck6 to argue that the trial court

should have excluded Parrish's earlier statement because Parrish had sufficient

memory of the statement's subject. The court in Floreck. however, excluded the

111 Wn. App. 135, 43 P.3d 1264(2002).

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witness's statement not because of memory issues, but because the witness

testified at trial that she lied in her earlier statement.7 Thus, because the

difference between the witness's trial testimony and an earlier taped statement

could not be attributed to insufficient memory, ER 803(a)(5) did not apply.8 Here,

Parrish does not disavow his earlier statement, and insufficient memory explains

his inability to testify fully to the events described in his earlier statement.

Floreck is inapplicable.

Because a reasonable person could have found that all four requirements

of 803(a)(5) were satisfied, we conclude that the court did not abuse its discretion

in admitting this evidence.

Opinion Testimony

D.L.N, next contends that the trial court erred in allowing Parrish to testify

to his opinion that the group members clearly knew each other. This testimony

supported the State's theory of group planning and effort necessary to prove

accomplice liability. D.L.N, argues that this testimony violated ER 602, because

Parrish did not have personal knowledge of these matters, and ER 701, because

he was "merely speculating."

ER 701 limits the testimony of nonexpert witnesses to

those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witnesses] testimony or the determination of a fact in issue, and (c)

7 Floreck, 111 Wn. App. at 139-40. 8 Floreck. 111 Wn. App. at 139-40.

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not based on scientific, technical, or other specialized knowledge within the scope of rule 702.19] Trial advocates must lay a proper foundation for opinion testimony,10 but

the trial court has wide discretion to admit this testimony under ER 701.11

Here, the prosecutor asked Parrish, "Did it appear to you, based on your

observations, that they knew each other, or not?" Parrish responded,

"Absolutely," based on his observation that "they were all in a clique together, all

talking amongst each other. . . . Any outsider would be able to obviously tell that

these individuals knew each other."

The trial court did not err in admitting Parrish's testimony. The testimony

was rationally based on his perceptions and observations. It was helpful for

determining a fact in issue and did not constitute Parrish's opinion of D.L.N.'s

guilt.12 It was not based on specialized knowledge. Accordingly, the court did

not abuse its discretion.

Sufficiency of the Evidence

D.L.N, also challenges the sufficiency of the evidence and findings to

establish his guilt as an accomplice to robbery. Evidence is sufficient if, when

viewed in a light most favorable to the State, it permits any rational trier of fact to

9 See State v. Montgomery. 163 Wn.2d 577, 591, 183 P.3d 267 (2008). 10 Montgomery. 163 Wn.2d at 592. 11 State v. Kinard. 39 Wn. App. 871, 874, 696 P.2d 603 (1985). 12 See Montgomery. 163 Wn.2d at 591 (listing areas inappropriate for opinion testimony at criminal trials, such as opinions as to the guilt or intent of the accused or the veracity of witnesses).

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find the essential elements of the crime beyond a reasonable doubt.13 A

challenge to the sufficiency of the evidence admits the truth of the State's

evidence and all reasonable inferences from that evidence.14 A "reviewing court

need not be convinced of the defendant's guilt beyond a reasonable doubt, but

only that substantial evidence supports the State's case."15 We do not review

issues of credibility or persuasiveness of the evidence.16

To convict D.L.N, as an accomplice to robbery in the first degree, the

State was required to prove beyond a reasonable doubt that (1) D.L.N, or

another unlawfully took personal property from the person of another; (2) the

taking was against the person's will by the use or threatened use of immediate

force, violence, or fear of injury by D.L.N, or another; (3) the force or fear was

used to obtain or retain the property or to prevent or overcome resistance to the

taking;17 (4) in the commission of these acts, D.L.N, or another inflicted bodily

injury;18 (5) with knowledge that it promoted or facilitated the commission of the

crime; and (6) D.L.N, solicited, commanded, encouraged, or requested another

to commit it, or aided or agreed to aid another in planning or committing the

crime.19 "Aid" means all assistance, including words, acts, encouragement, or

13 State v. Green. 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia. 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed .2d 560 (1979)). 14 State v. Salinas. 119Wn.2d 192, 201, 829 P.2d 1068 (1992). 15 State v. Fiser, 99 Wn. App. 714, 718, 995 P.2d 107 (2000). 16 Fiser. 99 Wn. App. at 719. 17RCW9A.56.190. 18RCW9A.56.200(1)(a)(iii). 19RCW9A.08.020(3)(a).

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support.20 For accomplice liability to attach, "the defendant must have

knowledge of the specific underlying crime . . . , not simply knowledge of any

crime, because we are not a strict accomplice liability state."21

D.L.N, contends that the trial court did not find he had the required

knowledge that he was assisting a robbery. He cites the court's conclusion of

law 3(b), "The Respondent or another intended to commit theft of the property."

(Emphasis added.) In support, D.L.N, cites State v. Grendahl.22 in which we held

that the defendant could not be convicted as an accomplice to robbery if he

intended that the principal commit only theft.

Grendahl is distinguishable. The defendant in Grendahl waited in a

getaway car and was not present when the principal Nauditt knocked down the

victim to steal her purse.23 Nauditt's testimony was unclear about what he had

discussed with Grendahl, and the jury was not presented with evidence that

Grendahl knew Nauditt was planning to commit a robbery.24 By contrast, the trial

court found here that the snatching of Parrish's money, the grabbing of Fournier's

cell phone, and the punching of Fournier happened in the same place, almost

simultaneously. Substantial evidence shows that members of the group talked

and acted together and that D.L.N, robbed Parrish. Viewing the evidence in the

20 State v. Ferreira. 69 Wn. App. 465, 471, 850 P.2d 541 (1993). 21 State v. Sublett. 176 Wn.2d 58, 79 n.13, 292 P.3d 715 (2012). 22 110 Wn. App. 905, 910-11, 43 P.3d 76 (2002). 23 Grendahl. 110 Wn. App. at 906. 24 Grendahl. 110 Wn. App. at 907-08.

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light most favorable to the State, a rational trier of fact could have found that

D.L.N, was an accomplice to the robbery of Fournier.

JuCR 7.11(d)

Finally, D.L.N, claims that the court's findings are inadequate under JuCR

7.11(d), which requires that the juvenile court's findings state "the ultimate facts

as to each element of the crime and the evidence upon which the court relied in

reaching its decision." Under this rule, the juvenile court in an adjudicatory

hearing must enter formal findings of fact and conclusions of law as to each

element of the offense charged.25 The State concedes that the court did not find

expressly that D.L.N, acted with "knowledge" in its written findings of fact and

conclusions of law. This omission was erroneous.

When the record contains sufficient evidence to support the omitted

finding, we may remand the case to permit entering further findings, if

appropriate.26 In State v. Bynum,27 this court found that incomplete written

findings did not interfere with the court's ability to review the case. We held that

"in light of the [juvenile] court's comprehensive oral ruling, ... it is unnecessary

even to remand this matter to the trial court."28

Here, as in Bynum. we look to the trial court's oral ruling to interpret its

written findings and conclusions. Although the trial court did not include an

25 State v. Souza. 60 Wn. App. 534, 537, 805 P.2d 237 (1991). 26 Souza. 60 Wn. App. at 541. 27 76 Wn. App. 262, 266, 884 P.2d 10 (1994). 28 Bynum, 76 Wn. App. at 265.

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express written finding that D.L.N, acted with "knowledge," the judge in her oral

ruling stated that the evidence supported her finding of accomplice liability,

though this finding was "more difficult." The court reiterated its finding that "[tjhis

was a group effort," based on the findings that this group was together before,

during, and after the crimes, and the two robberies took place almost

simultaneously. As in Bynum. the error of omission in the written findings is

"inconsequential, making remand an unnecessary administrative detail."29

Conclusion

Because the trial court did not abuse its discretion in admitting hearsay

and opinion testimony, sufficient evidence supported the court's findings, and

noncompliance with JuCR 7.11(d) was harmless error, we affirm.

WE CONCUR:

\

29 Bynum, 76 Wn. App. at 266.

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