FILED AUGUST 15, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 36637-5-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) KEANDRE DESHAWN BROWN, ) ) Appellant. )
PENNELL, J. — A jury convicted Keandre Brown of several felonies related to
the armed robbery of a pharmacy in Clark County, Washington. We affirm Mr. Brown’s
convictions, but remand with instructions to strike the criminal filing fee and the use of
motor vehicle finding from the judgment and sentence.
FACTS
In the summer of 2016, two masked gunmen entered the Mill Plain Medical and
Pharmacy in Vancouver, Washington, demanding oxycodone. While one of the men
purloined the drugs from the pharmacy’s safe, the other man ordered employees and
customers around at gunpoint. No. 36637-5-III State v. Brown
The two men exited the pharmacy through the front door and ran to a vehicle that
was backed into a slot of the pharmacy’s parking lot. A police officer sitting in traffic
nearby saw the two men run to the vehicle and drive away. Although his suspicions were
aroused, the officer did not initiate a pursuit because he was not yet aware of any criminal
conduct.
The pharmacy’s surveillance system recorded the robbery. The footage showed
that during the robbery the suspects’ masks would sometimes slip down, revealing their
faces. Law enforcement retained still images from the surveillance footage to help in
their investigation. The photographs were of a high quality and showed a clear view of
the suspects’ faces.
A probation officer identified Keandre Brown and his cousin as the two men
depicted in the surveillance photographs. The officer knew Mr. Brown through his
employment and had interacted with Mr. Brown numerous times, including approximately
10 conversations over the course of three and one-half years. The probation officer’s last
contact with Mr. Brown occurred in early 2016.
The State charged Mr. Brown with first degree robbery with a pharmacy
enhancement and two firearm enhancements, four counts of second degree assault, each
2 No. 36637-5-III State v. Brown
with two firearm enhancements, and two counts of first degree unlawful possession of a
firearm.
Prior to trial, Mr. Brown moved to prevent the probation officer from identifying
him in the surveillance photos. The trial court denied this request, finding the probation
officer had sufficient contacts with Mr. Brown to permit an identification. The probation
officer identified Mr. Brown in the still photos at trial.
A jury found Mr. Brown guilty as charged and found that both Mr. Brown and his
accomplice possessed firearms during the robbery and assaults.
Mr. Brown’s attorney filed a memorandum in anticipation of sentencing,
requesting an exceptional sentence downward based, in part, on Mr. Brown’s youth. The
State also filed a sentencing memorandum. The State noted that Mr. Brown’s sentencing
range, including firearm enhancements, was 549-591 months. The State also noted that
current case law would permit an exceptional sentence downward based on mitigating
circumstances related to Mr. Brown’s youth. However, the State declined to recommend
an exceptional sentence downward. Instead, the State asked the court to vacate five
firearm enhancements, thereby reducing Mr. Brown’s sentencing range to 333-375
months.
3 No. 36637-5-III State v. Brown
At sentencing, the State requested a sentence of 360 months. When asked for the
defense position, Mr. Brown’s attorney no longer pursued his request for an exceptional
sentence downward. Instead, defense counsel explained that the State’s favorable
sentencing recommendation was the result of the parties’ negotiations. As stated by
defense counsel:
Whether this young man at 19 was considered too youthful or too mature for any kind of alternative, the State has determined, after reading the defense’s request and argument under case law, that the compounding of the firearm enhancement created an unjust sentencing and has asked for 204 months to be reduced. That was our request. That is our goal.
Report of Proceedings (Oct. 10, 2017) at 681.
After hearing from the parties, the court noted its authority to impose a mitigated
sentence based on Mr. Brown’s youth. The court commented that the parties’ sentencing
recommendation reflected an acknowledgement of recent science related to juvenile brain
development and the “legal trend” against life sentences for youthful offenders. Id. at
682. Had Mr. Brown received a sentence within the range determined by the jury’s
verdict, the court observed that Mr. Brown would effectively receive a “life sentence.”
Id. But with the parties’ recommendation, Mr. Brown would get out of custody at age 50.
This was still a “stiff sentence,” but the court found it appropriate, given the significant
negative impact on Mr. Brown’s victims. Id. at 683.
4 No. 36637-5-III State v. Brown
In addition to imposing a 360-month sentence, the trial court found a motor vehicle
was used during the commission of Mr. Brown’s robbery and assault offenses, and that
Mr. Brown was subject to a $200 criminal filing fee.
Mr. Brown timely appeals his judgment and sentence. A Division Three panel
considered Mr. Brown’s appeal without oral argument after receipt of an administrative
transfer of the case from Division Two.
ANALYSIS
Mr. Brown makes an evidentiary challenge to his conviction as well as several
arguments related to sentencing. 1 Mr. Brown in his opening brief also objects to the trial
court’s failure to enter findings of fact and conclusions of law after a pretrial CrR 3.5
hearing. Because uncontested findings and conclusions have since been entered, this
final contention is now moot and we confine our analysis to the evidentiary and
sentencing contentions.
Evidentiary challenge
Mr. Brown claims the trial court abused its discretion in allowing the probation
1 Mr. Brown has also filed a statement of additional grounds for review, in which he makes two challenges to his conviction. Because both arguments rest on facts outside the appellate record, they must be raised in a personal restraint petition, not on direct review. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
5 No. 36637-5-III State v. Brown
officer to identify Mr. Brown from the surveillance footage and still photos. According
to Mr. Brown, the probation officer’s testimony unfairly bolstered the State’s case by
invading the province of the jury. We disagree.
ER 701 permits a lay witness to “give an opinion concerning the identity of a
person depicted in a surveillance photograph if there is some basis for concluding that the
witness is more likely to correctly identify the defendant from the photograph than is the
jury.” State v. Hardy, 76 Wn. App. 188, 190, 884 P.2d 8 (1994). The evidence here
meets this standard. The probation officer testified to extensive contacts with Mr. Brown,
occurring over the course of several years. Based on these contacts, the trial court had a
tenable basis for determining the probation officer was better equipped to identify Mr.
Brown from the surveillance footage than the jury. Cf.
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FILED AUGUST 15, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 36637-5-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) KEANDRE DESHAWN BROWN, ) ) Appellant. )
PENNELL, J. — A jury convicted Keandre Brown of several felonies related to
the armed robbery of a pharmacy in Clark County, Washington. We affirm Mr. Brown’s
convictions, but remand with instructions to strike the criminal filing fee and the use of
motor vehicle finding from the judgment and sentence.
FACTS
In the summer of 2016, two masked gunmen entered the Mill Plain Medical and
Pharmacy in Vancouver, Washington, demanding oxycodone. While one of the men
purloined the drugs from the pharmacy’s safe, the other man ordered employees and
customers around at gunpoint. No. 36637-5-III State v. Brown
The two men exited the pharmacy through the front door and ran to a vehicle that
was backed into a slot of the pharmacy’s parking lot. A police officer sitting in traffic
nearby saw the two men run to the vehicle and drive away. Although his suspicions were
aroused, the officer did not initiate a pursuit because he was not yet aware of any criminal
conduct.
The pharmacy’s surveillance system recorded the robbery. The footage showed
that during the robbery the suspects’ masks would sometimes slip down, revealing their
faces. Law enforcement retained still images from the surveillance footage to help in
their investigation. The photographs were of a high quality and showed a clear view of
the suspects’ faces.
A probation officer identified Keandre Brown and his cousin as the two men
depicted in the surveillance photographs. The officer knew Mr. Brown through his
employment and had interacted with Mr. Brown numerous times, including approximately
10 conversations over the course of three and one-half years. The probation officer’s last
contact with Mr. Brown occurred in early 2016.
The State charged Mr. Brown with first degree robbery with a pharmacy
enhancement and two firearm enhancements, four counts of second degree assault, each
2 No. 36637-5-III State v. Brown
with two firearm enhancements, and two counts of first degree unlawful possession of a
firearm.
Prior to trial, Mr. Brown moved to prevent the probation officer from identifying
him in the surveillance photos. The trial court denied this request, finding the probation
officer had sufficient contacts with Mr. Brown to permit an identification. The probation
officer identified Mr. Brown in the still photos at trial.
A jury found Mr. Brown guilty as charged and found that both Mr. Brown and his
accomplice possessed firearms during the robbery and assaults.
Mr. Brown’s attorney filed a memorandum in anticipation of sentencing,
requesting an exceptional sentence downward based, in part, on Mr. Brown’s youth. The
State also filed a sentencing memorandum. The State noted that Mr. Brown’s sentencing
range, including firearm enhancements, was 549-591 months. The State also noted that
current case law would permit an exceptional sentence downward based on mitigating
circumstances related to Mr. Brown’s youth. However, the State declined to recommend
an exceptional sentence downward. Instead, the State asked the court to vacate five
firearm enhancements, thereby reducing Mr. Brown’s sentencing range to 333-375
months.
3 No. 36637-5-III State v. Brown
At sentencing, the State requested a sentence of 360 months. When asked for the
defense position, Mr. Brown’s attorney no longer pursued his request for an exceptional
sentence downward. Instead, defense counsel explained that the State’s favorable
sentencing recommendation was the result of the parties’ negotiations. As stated by
defense counsel:
Whether this young man at 19 was considered too youthful or too mature for any kind of alternative, the State has determined, after reading the defense’s request and argument under case law, that the compounding of the firearm enhancement created an unjust sentencing and has asked for 204 months to be reduced. That was our request. That is our goal.
Report of Proceedings (Oct. 10, 2017) at 681.
After hearing from the parties, the court noted its authority to impose a mitigated
sentence based on Mr. Brown’s youth. The court commented that the parties’ sentencing
recommendation reflected an acknowledgement of recent science related to juvenile brain
development and the “legal trend” against life sentences for youthful offenders. Id. at
682. Had Mr. Brown received a sentence within the range determined by the jury’s
verdict, the court observed that Mr. Brown would effectively receive a “life sentence.”
Id. But with the parties’ recommendation, Mr. Brown would get out of custody at age 50.
This was still a “stiff sentence,” but the court found it appropriate, given the significant
negative impact on Mr. Brown’s victims. Id. at 683.
4 No. 36637-5-III State v. Brown
In addition to imposing a 360-month sentence, the trial court found a motor vehicle
was used during the commission of Mr. Brown’s robbery and assault offenses, and that
Mr. Brown was subject to a $200 criminal filing fee.
Mr. Brown timely appeals his judgment and sentence. A Division Three panel
considered Mr. Brown’s appeal without oral argument after receipt of an administrative
transfer of the case from Division Two.
ANALYSIS
Mr. Brown makes an evidentiary challenge to his conviction as well as several
arguments related to sentencing. 1 Mr. Brown in his opening brief also objects to the trial
court’s failure to enter findings of fact and conclusions of law after a pretrial CrR 3.5
hearing. Because uncontested findings and conclusions have since been entered, this
final contention is now moot and we confine our analysis to the evidentiary and
sentencing contentions.
Evidentiary challenge
Mr. Brown claims the trial court abused its discretion in allowing the probation
1 Mr. Brown has also filed a statement of additional grounds for review, in which he makes two challenges to his conviction. Because both arguments rest on facts outside the appellate record, they must be raised in a personal restraint petition, not on direct review. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
5 No. 36637-5-III State v. Brown
officer to identify Mr. Brown from the surveillance footage and still photos. According
to Mr. Brown, the probation officer’s testimony unfairly bolstered the State’s case by
invading the province of the jury. We disagree.
ER 701 permits a lay witness to “give an opinion concerning the identity of a
person depicted in a surveillance photograph if there is some basis for concluding that the
witness is more likely to correctly identify the defendant from the photograph than is the
jury.” State v. Hardy, 76 Wn. App. 188, 190, 884 P.2d 8 (1994). The evidence here
meets this standard. The probation officer testified to extensive contacts with Mr. Brown,
occurring over the course of several years. Based on these contacts, the trial court had a
tenable basis for determining the probation officer was better equipped to identify Mr.
Brown from the surveillance footage than the jury. Cf. State v. George, 150 Wn. App.
110, 119, 206 P.3d 697 (2009) (Identification testimony was improper when the testifying
officer lacked pre-offense contact with defendants.). There was no abuse of discretion.
Ineffective assistance of counsel at sentencing
Mr. Brown next argues that his counsel provided ineffective assistance at
sentencing by failing to follow through on his motion for an exceptional sentence
downward. To prove ineffective assistance, Mr. Brown must demonstrate his attorney’s
performance was both deficient and prejudicial. Strickland v. Washington, 466 U.S. 668,
6 No. 36637-5-III State v. Brown
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). When defense counsel’s conduct can be
characterized as reasonably strategic, it will not be deemed ineffective. State v. Kyllo,
166 Wn.2d 856, 863, 215 P.3d 177 (2009).
Defense counsel’s conduct here was both effective and strategic. Defense counsel
recognized the compelling circumstances relevant to Mr. Brown’s sentencing. But rather
than wait for the sentencing hearing to take a chance on leniency from the court, defense
counsel made the strategic decision to seek a favorable disposition from the State. This
effort paid off. The State agreed to reduce Mr. Brown’s sentencing range by 15 to 19
years. This saved Mr. Brown from the uncertainty of a contested sentencing hearing
involving sympathetic victims. It also protected Mr. Brown from an adverse appeal.
Far from providing defective representation, the record indicates that Mr. Brown’s
attorney provided excellent counsel. No constitutional violation occurred.
Sentencing finding regarding use of a motor vehicle
Mr. Brown contends the trial court erred in finding that he used a motor vehicle in
the commission of the robbery and assaults, pursuant to RCW 46.20.285(4). Because this
issue involves the application of a statute to a specific set of facts, our review is de novo.
State v. Hearn, 131 Wn. App. 601, 609, 128 P.3d 139 (2006).
7 No. 36637-5-III State v. Brown
RCW 46.20.285(4) provides for a one-year revocation of a driver’s license for
“[a]ny felony in the commission of which a motor vehicle is used.” The term “used” as
provided in this statute means “‘employed in accomplishing something.’” State v.
Batten, 95 Wn. App. 127, 129, 974 P.2d 879 (1999) (quoting WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 2524 (3d ed. 1966)), aff’d, 140 Wn.2d 362, 997 P.2d 350
(2000). This statute is applicable only when a vehicle has been “‘employed in
accomplishing’ the crime.” Id. at 129-30. There must be a relationship between the
vehicle and the commission or accomplishment of the crime. State v. Alcantar-
Maldonado, 184 Wn. App. 215, 228, 340 P.3d 859 (2014) (citing Batten, 140 Wn.2d
at 365). A vehicle is not used in the commission of a crime where it was incidental to
the commission of the crime, or merely used for transport to or from a crime scene.
Id. at 229-30.
The record here fails to show that a vehicle played more than an incidental role in
Mr. Brown’s offense conduct. Mr. Brown was not in the car at the time he initiated his
crimes against the pharmacy’s occupants. And he did not enter the car to leave the scene
until after the offenses were complete. Although the crime of robbery can extend past
the initial act of obtaining property from a victim, see RCW 9A.56.190 (Robbery includes
force or fear “used to obtain or retain possession of the property, or to prevent or
8 No. 36637-5-III State v. Brown
overcome resistance to the taking.”), that is not what happened here. 2 No one attempted
to thwart Mr. Brown’s retention of the stolen drugs. As a result, his offense ended
upon illegal acquisition of the property. See State v. Robinson, 73 Wn. App. 851, 857,
872 P.2d 43 (1994) (“When it is undisputed that the defendant used force to take personal
property unlawfully from a person ‘or in his presence against his will’ but used no
additional force to retain the property or to effect an escape, the transactional view [of
robbery] has no application.”). Because the vehicle was used only during Mr. Brown’s
post-offense activities, not during the act of robbery or assault, RCW 46.20.285(4)’s
license suspension provision is inapplicable.
Criminal filing fee
As the parties agree, recent statutory changes prohibit imposition of a $200
criminal filing fee on a defendant, such as Mr. Brown, who is indigent at the time of
sentencing. See RCW 36.18.020(2)(h); State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d
714 (2018). The filing fee must therefore be struck.
2 The crime of assault has no such extended application.
9 No. 36637-5-111 State v. Brown
CONCLUSION
Mr. Brown's convictions are affirmed. We remand with instructions to strike the
$200 criminal filing fee and the use of motor vehicle finding from Mr. Brown's judgment
and sentence.
A majority of the panel has determined 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.
Pennell, J.
WE CONCUR:
L,......i:.... c.t,.- ~\N\.'7 , c.. ~. Lawrence-Berrey, CJ.