State Of Washington v. Gerald Yanac

• Court: Court of Appeals of Washington
• Decided: February 18, 2015
• Docket: 45228-6
• Status: Unpublished

Opinion

COURT OF`

2015 FEB 18 An 9: 2D Tf TONS B

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 45228 -6 -II

Respondent,

v.

GERALD LEWIS YANAC, UNPUBLISHED OPINION

Appellant.

JOHANSON, C. J. — Gerald Yanac appeals his bench trial conviction for first degree

robbery. Yanac argues, and we agree, that insufficient evidence supports the conclusion that

Yanac made an implied threat of immediate force. Accordingly, we reverse his first degree

robbery conviction, dismiss it with prejudice, and remand for further proceedings.

FACTS

In August 2012, Yanac entered a bank and approached the bank teller.' Yanac wore

sunglasses and a baseball cap and appeared to be " fidgety" and " suspicious." Clerk' s Papers ( CP)

at 116. He put a plastic bag on the counter at the teller' s station and stated, " Money." CP at 116.

Attempting to clarify Yanac' s request, the bank teller inquired, " Money ?" and he responded,

1 The facts are undisputed. Br. of Appellant at 6 ( " Here, the trial court' s findings were based on undisputed facts. "). No. 45228 -6 -II

Money." CP at 116. She put one and five dollar bills into the bag. When the bank teller stopped

giving him money, Yanac stated, " More." CP at 116. She put more money into Yanac' s bag until

finally stating, " That' s all." CP at 116. Yanac turned, left the bank, and was arrested about two

hours later.

The State charged Yanac with possession of a stolen vehicle, first degree robbery, and first

degree theft. After a bench trial on stipulated facts, the trial court convicted Yanac of theft of a

motor vehicle and first degree robbery and dismissed the first degree theft charge. In addition to

the facts stated above, the trial court found that Yanac had " leaned into [the bank teller]' s personal

space" with the plastic bag, that the bank teller was " nervous and intimidated by [Yanac' s] repeated

demands for money," and that the bank teller felt that " she needed to comply to avoid harm to

herself or others, and that it was also bank policy to comply with demands for money for the same

reasons." CP at 116. Based on its findings of fact, the court concluded, in relevant part, " That

Yanac] impliedly threatened the immediate use of force through his actions and appearance while

demanding the money from [ the bank teller]' s person inside the Key Bank branch on Bay Street

in Port Orchard, WA on August 15, 2012." CP at 117.

Yanac appeals his first degree robbery conviction.

ANALYSIS

I. INSUFFICIENT EVIDENCE OF AN IMPLIED THREAT

Yanac argues that insufficient evidence supports his conviction for first degree robbery.

Specifically, he argues that the trial court' s findings of fact do not support its conclusion that Yanac

made an implied threat of immediate force. We agree and hold that the trial court' s findings do

not support the conclusion that Yanac impliedly threatened the immediate use of force. No. 45228 -6 -II

A. STANDARD OF REVIEW AND RULES OF LAW

When a defendant challenges the sufficiency of the evidence after a bench trial, our review

is limited to determining whether substantial evidence supports the trial court' s findings of fact

and whether those findings support its conclusions of law. State v. Homan, 181 Wn.2d 102, 105-

06, 330 P. 3d 182 ( 2014). Unchallenged findings of fact are verities on appeal. Homan, 181 Wn.2d

at 106. We review the trial court' s conclusions of law de novo. Homan, 181 Wn.2d at 106. When

arguing insufficient evidence on appeal, the defendant admits the truth of the State' s evidence and

all reasonable inferences that may be drawn from it. Homan, 181 Wn.2d at 106 ( citing State v.

Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992)).

A defendant commits " robbery" when he

unlawfully takes personal property from the person of another or in his or her presence against his or her will by the use or threatened use of immediate force, violence, or fear of injury to that person or his or her 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.

RCW 9A.56. 190 ( emphasis added). A robbery conviction may be supported by evidence of any

threat that induces the owner to part with his property. State v. Handburgh, 119 Wn.2d 284, 293,

830 P. 2d 641 ( 1992). The statutory definition of a " threat" includes both a direct or indirect intent

to cause bodily injury, damage to property, or physical confinement or restraint. RCW

9A.04. 110( 28)( a) -(c); State v. Shcherenkov, 146 Wn. App. 619, 624 -26, 191 P. 3d 99 ( 2008),

review denied, 165 Wn.2d 1037 ( 2009). We apply an objective test and ask " whether an ordinary

person in the victim' s position could reasonably infer a threat of bodily harm from the defendant' s

acts." State v. Witherspoon, 180 Wn.2d 875, 884, 329 P. 3d 888 ( 2014).

3 No. 45228 -6 -II

B. THE IMPLIED THREAT

Because Yanac does not challenge the trial court' s findings of fact, they are verities on

appeal. Homan, 181 Wn.2d at 106. We, therefore, review the trial court' s findings to determine

whether, as a matter of law, they support the conclusion that Yanac " impliedly threatened the

immediate use of force through his actions and appearance." CP at 117.

In State v. Farnsworth, Wn. App. , 340 P. 3d 890, 892 -93 ( 2014), we addressed the

same issue as in this casethe sufficiency of the evidence to establish an implied threat to a bank

teller during an alleged robbery. We held that the defendant' s actions did not amount to an implied

threat because he " simply handed over a note instructing the teller to ` put the money in the bag'

and] did not insinuate that he would take further action if the teller did not comply with the note' s

instructions." Farnsworth, 340 P. 3d at 894. We also rejected the argument that the teller' s reaction

is sufficient to justify finding an implicit threat of force. Farnsworth, 340 P. 3d 894.

Here, we are faced with virtually identical facts. Yanac took the following actions: he

walked into the bank; acted " fidgety "; moved the plastic bag into the bank teller' s personal space;

said three words, " Money," " Money," and " More "; and then left the bank. CP at 116. The trial

court characterized the three words that Yanac spoke as " demands" for money. CP at 118.

Regarding Yanac' s appearance, the trial court found that he appeared suspicious and fidgety, that

he was not a local customer of the bank, and that he was wearing a baseball cap and sunglasses.

In addition, the trial court relied on the fact that the bank teller " felt she needed to comply

to avoid harm to herself or others." CP at 116. To the extent the trial court relied on the bank

teller' s subjective reaction to Yanac' s conduct, this was error. The appropriate inquiry is whether

an ordinary person in the bank teller' s position could reasonably infer a threat of bodily harm from

4 No. 45228 -6 -II

Yanac' s acts. Witherspoon, 180 Wn. 2d at 884. On these facts, there was no suggestion inferred

either from Yanac' s conduct or his words that he threatened to use immediate force against the

bank teller in order to enforce his demands for money. An ordinary person in the bank teller' s

position, therefore, could not reasonably infer a threat of bodily harm from Yanac' s words and.

actions. We conclude that insufficient evidence supports this element of robbery.

C. THE STATE' S ARGUMENT

The State relies on two cases to support its argument that there is sufficient evidence in this

case: Shcherenkov and State v. Collinsworth, 90 Wn. App. 546, 966 P. 2d 905 ( 1997), review

denied, 135 Wn.2d 1002 ( 1998). But Shcherenkov is legally and factually distinguishable and we

believe that the Collinsworth court' s interpretation of an implied threat of force does not give effect

to all words in the robbery statute, RCW 9A.56. 190.

In Shcherenkov, the primary issue was whether a jury instruction that permitted the jury to

find the threat element of robbery based on an implied threat was appropriate. 146 Wn. App. at

624 -26. We held that an implied threat of force is sufficient to support a robbery conviction.

Shcherenkov, 146 Wn. App. at 626. In this appeal, however, that question is not in dispute.

Shcherenkov is also factually distinguishable from this case. Shcherenkov was charged

with four separate robberies, and we considered whether the facts were sufficient to find the

necessary threat of immediate force or violence. Shcherenkov, 146 Wn. App. at 626 -27. During

the first three robberies, the defendant passed a note to the bank tellers that stated explicitly, ' This

is a robbery. "' Shcherenkov, 146 Wn. App. at 622 -23. During the fourth robbery, Shcherenkov' s

note said, "' Do not make any sudden movements or actions. I will be watching you.'"

Shcherenkov, 146 Wn. App. at 623. During the fourth robbery, Shcherenkov also kept his hands

5 No. 45228 -6 -II

in his pockets. Shcherenkov, 146 Wn. App. at 623. We held that it was reasonable for the bank

tellers to infer a threat of violence from the notes that stated explicitly that Shcherenkov was

robbing them. Shcherenkov, 146 Wn. App. at 628 -29. It was also reasonable for the teller in the

fourth robbery to suspect that Shcherenkov had a gun because his hands were in his pockets and

to infer a threat of violence from his statement that he would " be watching." Shcherenkov, 146

Wn. App. at 629.

Yanac, in contrast, merely appeared to be " suspicious" and " fidgety" and spoke three

words: " Money," " Money," and " More." CP at 116. Yanac' s conduct is factually distinguishable

from Shcherenkov' s conduct and is much more like the conduct in Farnsworth.

In Collinsworth, Division One of this court announced a broad rule for interpreting implied

threats. Yanac argues that under Collinsworth, any demand for money in a bank would be a

robbery. The. State argues that Collinsworth should guide this court' s decision in this case. We

decline to follow Collinsworth here.

Collinsworth involved five robberies and one attempted robbery, each with slightly .

different facts. 90 Wn. App. at 548 -50. In one case, the defendant walked into a bank and asked

for "' twenties, fifties, and hundreds ' in a "` firm, direct ' tone. Collinsworth, 90 Wn. App. at 550.

The teller asked if Collinsworth was serious, Collinsworth replied, "` [Y] es' ... [ d] on' t give me a

dye pack, ' put the cash in his bag, and walked out. Collinsworth, 90 Wn. App. at 550. In another

case, Collinsworth approached the teller and said, "` Give me all your fifties and hundreds.'

Collinsworth, 90 Wn. App. at 549. Because the teller did not understand, Collinsworth repeated

his " demand" and the teller complied. Collinsworth, 90 Wn. App. at 549.

6 No. 45228 -6 -II

The Collinsworth court recognized that there was no Washington case law that provided

guidance in determining what is " necessary to establish robbery in circumstances where the

defendant does not utilize overt physical or verbal threats." 90 Wn. App. at 552. The court,

therefore, decided to draw an analogy to federal case law interpreting the definition of

intimidation," an element of federal bank robbery. Collinsworth, 90 Wn. App. at 552 -53.

In United States v. Bingham, 628 F. 2d 548 ( 9th Cir. 1980), cert. denied, 449 U.S. 1092

1981), the Ninth Circuit defined " intimidation" as " the willful taking in such a way as would place

an ordinary person in fear of bodily harm." In United States v. Lucas, 963 F.2d 243, 244 ( 9th Cir.

1992), the defendant entered a bank, put a bag on the counter, and passed the teller a note that said,

Give me all your money, put all your money in the bag. "' Lucas also told the teller verbally,

Put it in the bag. "' Lucas, 963 F. 2d at 244. The Ninth Circuit held that the defendant' s written

and oral demands, in addition to the teller' s testimony that she was terrified, was sufficient to find

intimidation. Lucas, 963 F.2d at 248.

The federal bank robbery statute at issue in Bingham and Lucas requires proof of "force

and violence" or " intimidation." 18 U. S. C. § 2113( a). This statute is distinguishable from

Washington' s first degree robbery statute, RCW 9A. 56. 200, in two ways. First, the federal law

applies only to bank robberies. Our statute applies to robberies in many different contexts.

Second, the element of "intimidation" is not the same as Washington' s " implied threat" element.

Intimidation is defined as " the willful taking in such a way as would place an ordinary person in

fear of bodily harm." Bingham, 628 F. 2d at 548. But Washington' s first degree robbery statute

requires us to focus on the defendant' s threatening acts separate from the taking of money or

property and not the manner of the taking itself. Witherspoon, 180 Wn.2d at 884. The element of

7 No. 45228 -6 -II

a defendant' s " threat," expressed or implied, is missing from the federal bank robbery statute.

Thus, we do not find the federal cases persuasive.

Division One affirmed each of Collinsworth' s convictions and held that

i]n each incident, Collinsworth made a clear, concise, and unequivocal demand for money. He also either reiterated his demand or told the teller not to include " bait" money or " dye packs," thereby underscoring the seriousness of his intent. 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 fraughtwith the implicit threat to use force. " Any force or threat, no

matter how slight, which induces an owner to part with his property is sufficient to sustain a robbery conviction."

Collinsworth, 90 Wn. App. at 553 -54 ( quoting State v. Ammlung, 31 Wn. App. 696, 704, 644 P. 2d

717 ( 1982)). Based on this reasoning, any demand for money from a bank to which a defendant

has no legal right is an implicit threat of force and, therefore, a robbery. However, Division One' s

broad interpretation of an implicit threat does not give meaningful effect to all of the words in the

robbery statute, RCW 9A.56. 190, and blurs the line between theft and robbery.

Where possible, we give effect to all words in a statute. State v. Roggenkamp, 153 Wn.2d

614, 624 -25, 106 P. 3d 196 ( 2005). First degree robbery requires the State to prove ( 1) the taking

of "personal property from the person of another" and ( 2) that the taking was done " by the use or

threatened use of immediate force, violence, or fear of injury to that person." RCW .9A.56. 190.

First degree theft, in contrast, requires the State to prove only that the defendant committed theft

of "[ p] roperty of any value ... taken from the person of another." RCW 9A.56. 030( 1)( b).

The plain language of the first degree theft and first degree robbery statutes show that the

legislature recognized that there are circumstances where a defendant could take personal property

from the person of another without a threat of immediate force, violence, or fear of injury. As the

language of the first degree theft statute confirms, the legislature did not intend to punish

8 No. 45228 -6 -II

defendants for first degree robbery who take property from another without a direct or implied

threat but intend to punish them instead for first degree theft. Robbery is intended to punish the

taking by force or threat of force and not just the taking. Witherspoon, 180 Wn.2d at 888 ( "` The

nature of the crime of robbery includes the threat of violence against another person. "' ( quoting

State v. Rivers, 129 Wn.2d 697, 713, 921 P. 2d 495 ( 1996))).

But if any demand for money in a bank establishes a threat of violence, the distinction

between robbery and first degree theft is blurred considerably and the clear, statutory requirement

that the State prove that a threat occurred becomes meaningless. In Farnsworth, we agreed that a

robbery conviction based on its facts would have blurred the lines between theft and robbery and

that if the legislature wanted "to define all thefts from financial institutions as robberies, it may act

accordingly." 340 P. 3d at 895 n.7. The legislature has not acted to do this.

Yanac entered the bank, looked suspicious and fidgety, put a bag on the counter in front of

the bank teller, and " demanded" money by saying, " Money," " Money," and " More." CP at 116.

In order to find a threat of immediate force here, the trial court must have inferred that Yanac' s

demand implied that if the bank teller did not comply, immediate force would be the consequence.

Like in Farnsworth, however, this inference is simply not reasonable where Yanac' s actions did

not insinuate any threat of violence. Even making all reasonable inferences from this evidence in

the State' s favor, this evidence is insufficient to support a conclusion that Yanac made an implied

threat of immediate force.

Accordingly, we hold that the trial court' s findings do not support the conclusion that

Yanac made an implied threat of immediate force because an ordinary person in the bank teller' s

position could not have reasonably inferred such a threat from Yanac' s words or conduct. Where

9 No. 45228 -6 -II

there is insufficient evidence as a matter of law to support a conviction, Yanac is entitled to

dismissal with prejudice of his first degree robbery conviction. State v. Crediford, 130 Wn.2d 747,

761, 927 P. 2d 1129 ( 1996). We reverse his first degree robbery conviction, dismiss it with

prejudice, and remand for proceedings consistent with this opinion.

A majority of the panel having deteimuned that this, opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.

We concur: