State v. Brown

116 P.3d 400
Court of Appeals of Washington·Decided July 21, 2005·No. 22705-7-III·Published·Cited by 7 cases

Opinion

116 P.3d 400 (2005)

STATE of Washington, Respondent, Cross-Appellant,
v.
Bud Ray BROWN, Appellant.

No. 22705-7-III.

Court of Appeals of Washington, Division Three, Panel One.

May 31, 2005.
Publication Ordered July 21, 2005.

*401 Thomas M. Kummerow, Washington Appellate Project, Seattle, WA, for Appellant.

Kevin M. Korsmo, Attorney at Law, Spokane, WA, for Respondent.

BROWN, J.

¶ 1 Bud Ray Brown was convicted of second degree robbery. On appeal, Mr. Brown contends: (1) the evidence was insufficient to convict him of second degree robbery; and (2) his sentence violates the Sixth Amendment under Blakely v. State, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The State cross-appeals, contending the court erred in declining to treat three felony convictions in Florida as adult convictions in Mr. Brown's offender score. We affirm Mr. Brown's conviction, but grant the State's cross-appeal and remand for further sentencing proceedings.

FACTS

¶ 2 On April 19, 2003, Geneva Campbell was waiting for a bus in front of a Denny's restaurant in north Spokane, when a young man approached her from behind and demanded her purse. The man took Ms. Campbell's purse and knocked her down. Following the incident, she described the man as a white male, with short blonde hair, wearing dark clothing.

¶ 3 Karen Howell and her husband witnessed the incident from the Denny's parking lot. Ms. Howell described the assailant as a young, Caucasian male, approximately five-feet-seven to five-feet-eight inches tall, with a shaved head, and wearing dark clothing.

¶ 4 Geoffrey Smith was driving a car at a nearby auto dealership where he worked when he saw a young man carrying a purse running at full speed behind Denny's and then "dive" into a waiting car being driven by a female. Report of Proceedings (RP) at 39. He saw the man from the front and back side for a total of about 30 seconds from 30 to 40 feet away. Mr. Smith wrote down the license plate number on his hand. He described the suspect as a Caucasian male, in his 20s, with short blonde hair; approximately five-feet-six inches to five-feet-eight inches tall, wearing a gray sweater and denim jeans. Mr. Smith identified Mr. Brown in a show up and in court as the person he had seen running.

¶ 5 Spokane Police Officer Alan Edwards soon found a car with a matching license plate parked behind an apartment building, about one mile southwest of the crime scene. An individual closely matching the suspect's description then emerged from an area near the car. The suspect was apprehended by Officer Edwards after first running and appearing to hide. The suspect wore a light blue jersey and brown pants when he was arrested.

¶ 6 Officer Paul Watson brought Ms. Campbell and Mr. Smith to that location for identification. From 30 feet away, Ms. Campbell was unable to identify Mr. Brown. She did not want to come any closer. She described Mr. Brown's hair as "too dark." RP at 27. Mr. Smith then positively identified Mr. Brown, but he was unable to pick Mr. Brown out of a defense photomontage seven months later.

¶ 7 Mr. Brown was charged with second degree robbery. At a bench trial, Mr. Brown denied any involvement in the robbery. He testified he was in the area where the car was found because he was visiting a friend named "Hollywood," who lived in a nearby apartment. RP at 92. He related he ran from the police because he feared he would be arrested on an outstanding warrant.

¶ 8 Mr. Brown was convicted as charged. At sentencing, the State argued Mr. Brown's offender score should include three felony convictions in Florida. Mr. Brown committed *402 all three offenses as a juvenile, but was convicted in adult court after he turned 18. Over the State's objection, the court declined to treat the Florida crimes as adult convictions for purposes of Mr. Brown's offender score.

¶ 9 Mr. Brown was sentenced within the standard range for an offender score of five instead of seven as argued by the State. He appealed his conviction and sentence, and the State cross-appealed the court's offender score determination.

ANALYSIS

A. Evidence Sufficiency

¶ 10 The issue is whether sufficient evidence exists to support Mr. Brown's conviction for second degree robbery.

¶ 11 The test for sufficiency of the evidence is whether, after viewing the evidence and all reasonable inferences most favorably to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980). We defer to the trier of fact to weigh the evidence and judge the credibility of the witnesses. State v. Bryant, 89 Wash. App. 857, 869, 950 P.2d 1004 (1998) (citing State v. Hayes, 81 Wash.App. 425, 430, 914 P.2d 788 (1996)). Direct and circumstantial evidence are equally relevant. State v. Brooks, 45 Wash.App. 824, 826, 727 P.2d 988 (1986).

¶ 12 To convict Mr. Brown of second degree robbery, the State was required to prove he unlawfully took Ms. Campbell's purse by the use of force. See RCW 9A.56.190; RCW 9A.56.210. Although Mr. Brown contends Mr. Smith's show up identification was impermissibly suggestive and, thus, insufficient to support his conviction, he failed to object at trial. Failure to object to evidence at trial precludes appellate review, unless the appellant makes a showing of manifest constitutional error not present here. See RAP 2.5(a).

¶ 13 Even so, an impermissibly suggestive lineup violates due process solely when it creates an "irreparable probability of misidentification." State v. Ramires, 109 Wash.App. 749, 761, 37 P.3d 343 (2002) (citing State v. Vickers, 107 Wash.App. 960, 967, 29 P.3d 752 (2001), aff'd, 148 Wash.2d 91, 59 P.3d 58 (2002)). Review involves two steps. Id. "First, the defendant must show the lineup was impermissibly suggestive. If the defendant fails to meet this initial burden, then the court determines whether the . . . identification contained sufficient indicia of reliability despite the suggestiveness." Id. (citations omitted).

¶ 14 Generally, "courts have found lineups or montages to be impermissibly suggestive solely when the defendant is the only possible choice given the witness's earlier description." Ramires, 109 Wash.App. at 761, 37 P.3d 343. Only the show up identification merits mention because the montage was prepared by Mr. Brown and was, nevertheless, inconclusive.

¶ 15 Even an impermissibly suggestive identification may be overcome if it is otherwise sufficiently reliable. Ramires, 109 Wash.App. at 761, 37 P.3d 343.

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State v. Brown, 116 P.3d 400 (Wash. Ct. App. 2005).

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