State v. Van Pilon

651 P.2d 234, 32 Wash. App. 944, 1982 Wash. App. LEXIS 3260
CourtCourt of Appeals of Washington
DecidedSeptember 15, 1982
Docket8014-8-I
StatusPublished
Cited by8 cases

This text of 651 P.2d 234 (State v. Van Pilon) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Van Pilon, 651 P.2d 234, 32 Wash. App. 944, 1982 Wash. App. LEXIS 3260 (Wash. Ct. App. 1982).

Opinions

James, J.

Defendant Joanne Marie Rosenkranz appeals her conviction following jury trial on two counts of first degree robbery with special verdicts that she was armed with a deadly weapon at the time she committed the crimes. We reverse the conviction and strike the deadly weapon verdicts.

On June 15, 1979, a man and a woman robbed a pharmacy in Lake City. Police arrested Rosenkranz on June 21, 1979. The robbery victims identified her at a lineup and at trial as one of the robbers.

After police arrested Rosenkranz, they impounded her van. The van was taken to the police garage. After the victims had identified Rosenkranz as one of the robbers, officers obtained a search warrant authorizing them to search the van. The warrant provides that the officers could search the van

for the following evidence: blue levi style jeans jacket, other items of clothing worn by suspects during robbery [946]*946and items showing ownership and control of van and its contents.

The officers searched the van, finding a bill of sale which established that Rosenkranz was the owner of the vehicle, and a jeans jacket. Officers also searched Rosenkranz' purse which was found in the van. Inside the purse was a green sock that contained drugs taken from the pharmacy.

Rosenkranz contends the drugs seized from her purse should have been suppressed. We do not agree.

The officers' search of the purse was within the scope of the search warrant. The warrant authorized the officers to search for "items showing ownership and control of [the] van and its contents." The police authority extended to pursuing evidence relating to ownership of the contents of the vehicle. Rosenkranz' purse was a logical repository for evidence named in the warrant. See generally 2 W. LaFave, Search and Seizure § 4.10(d) (1978). Because the police were justified in searching the purse, their inadvertent discovery of the drugs taken from the pharmacy justified the seizure under the plain view doctrine. See State v. Murray, 84 Wn.2d 527, 527 P.2d 1303 (1974).

At trial, Rosenkranz admitted her participation in the robbery and testified that her codefendant had not been involved. She further testified she was not armed during the robbery and did not know her coparticipant was armed. In contrast, the robbery victims testified that they observed what could have been a silhouette of a weapon beneath Rosenkranz' coat, and that Rosenkranz told the woman victim not to move or she would "blow [her] f--head off." Neither witness, however, observed Rosenkranz display a gun or what appeared to be a deadly weapon. Rosenkranz' proximity to her coparticipant and apparent attentiveness to his actions was the subject of conflicting testimony by Rosenkranz and the victims.

The trial judge gave "to convict" instructions for first degree robbery and, pursuant to agreement between coun[947]*947sel, the lesser included offense of second degree robbery.1 Instruction 14 advised the jury that first degree robbery is committed if, inter alia,

in the commission of these acts or in immediate flight therefrom the defendant, or accomplice, was armed with a deadly weapon or displayed what appeared to be a firearm or other deadly weapon; . . .

Instruction 15 advised the jury that

if an accomplice to a defendant is armed with a deadly weapon in the commission of a crime, both are considered armed with a deadly weapon.

During its deliberations, the jury submitted these questions to the trial judge:

Can a person be guilty of 1st degree robbery if they [sic] did not know that a gun was going to be used, or displayed, in that robbery[?]
Does Jury Instruction No. 15 apply to the Special Verdict Interrogatory regarding Joanne Rosenkranz's being armed with a deadly weapon at the time of the commission of the crime as charged?
Does the attached Special Verdict call for a factual question whether Joanne Rosenkranz was actually armed with a deadly weapon, or does the attached Special Verdict call for the jury to apply the law as given by the Court to this interrogatory?

The trial judge responded that jurors should reread their instructions. The verdicts from which Rosenkranz appeals followed.

Rosenkranz' further assignments of error concern the absence of any instructional requirement that she possessed knowledge her coparticipant was armed with a deadly weapon or what appeared to be a deadly weapon in order to be convicted of first degree robbery or to be subjected to [948]*948the enhanced sentencing provisions of RCW 9.95.040. The State initially asserts neither contention has been preserved for appeal because the defense neither made proper objections to the instructions given nor requested instructions embodying its theory.

Rosenkranz' trial counsel excepted to instruction 15, arguing that it erroneously required the jury to find Rosen-kranz was armed with a deadly weapon if her coparticipant was armed, without regard to whether she was aware the coparticipant was armed. Rosenkranz' exception and argument adequately preserved an assignment of error to the giving of instruction 15 with reference to the special verdicts, see, e.g., State v. Ross, 20 Wn. App. 448, 580 P.2d 1110 (1978). But we cannot conclude the trial judge was adequately apprised of the objections which Rosenkranz now raises concerning the accomplice instructions. Furthermore, the instructions proposed by Rosenkranz provided no basis upon which the jury could consider lack of knowledge of the coparticipant's weaponry in determining if Rosen-kranz was guilty of first degree robbery or subject to the deadly weapons statute.

Except for instructional error which invades a constitutional right of the accused, an appellate court will not consider errors claimed in instructions given or refused unless there was an exception taken at trial adequate to direct the trial judge's attention to the claimed error. State v. Theroff, 95 Wn.2d 385, 622 P.2d 1240 (1980); State v. Kroll, 87 Wn.2d 829, 558 P.2d 173 (1976); State v. Louie, 68 Wn.2d 304, 413 P.2d 7 (1966). An instruction which prejudicially relieves the State of its burden of proof or prejudicially deprives the defendant of the benefit of having the jury pass upon a significant and disputed issue invades a defendant's right to a fair trial. State v. Louie, supra; State v. Stowers, 2 Wn. App. 868, 471 P.2d 115 (1970). See State v. Kroll, supra; State v. Peterson, 73 Wn.2d 303, 438 P.2d 183 (1968); State v. Fesser, 23 Wn. App. 422, 595 P.2d 955 (1979).

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State v. Van Pilon
651 P.2d 234 (Court of Appeals of Washington, 1982)

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Bluebook (online)
651 P.2d 234, 32 Wash. App. 944, 1982 Wash. App. LEXIS 3260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-van-pilon-washctapp-1982.