State v. Webb

162 Wash. App. 195
Court of Appeals of Washington·Decided June 7, 2011·No. No. 28627-4-III·Published·Cited by 25 cases

Opinions

Kulik, C.J.

¶1 In 2009, Robert Daniel Webb took his nine-year-old daughter with him when he robbed a minimart with a toy gun. Mr. Webb appeals his conviction for reckless endangerment and first degree robbery with the aggravating factor that the offense involved a destructive and foreseeable impact on a person other than the victim.

¶2 Mr. Webb contends there was insufficient evidence to establish that he displayed what appeared to be a firearm and that the robbery involved a destructive and foreseeable impact on his daughter. He also contends the aggravating factor violates due process vagueness prohibitions and the court erred when instructing the jury. Mr. Webb further contends the court erred by failing to give a voluntary intoxication instruction.

¶3 We affirm the convictions but reverse the aggravating factor and remand for resentencing within the standard range.

FACTS

¶4 On March 31, 2009, Eric Owens was working the night shift at a minimart in Thorp, Washington. Just before [199]*1993:00 a.m., a man and a little girl walked into the store. The two were later identified as Daniel Robert Webb and his daughter.

¶5 The girl got a drink from the cooler, and Mr. Webb got a cup of coffee using two stacked paper cups. Mr. Owens told Mr. Webb to use a sleeve because he would be charged for one of the cups. Mr. Webb became threatening. With his nine-year-old daughter at his side, Mr. Webb gruffly told Mr. Owens to give him the gasoline, the coffee, and the girl’s drink or he would get hot coffee in his face. Mr. Webb then asked something about the drawer and pulled out what appeared to be a gun. Mr. Owens asked if he was being robbed. Mr. Owens testified that the gun looked very real.

¶6 While the gun was pointed at him, Mr. Owens asked Mr. Webb if he wanted the whole drawer or just the cash. Mr. Webb said, “ ‘Just give me the cash from the drawer.’ ” I Report of Proceedings (RP) at 10. Mr. Webb told Mr. Owens not to call the police or he would come back and kill him. At first, Mr. Owens looked at the gun and thought, “I am dead.” I RP at 10. He was afraid for his life, fearful for the little girl, and worried that a customer might walk in. But as Mr. Owens looked at the gun, he noticed that it appeared to be plastic. Mr. Webb put the gun back in his pocket, and Mr. Owens gave him the cash. The gun was displayed for only 5 to 10 seconds.

¶7 Over time, Mr. Owens decided there was a strong possibility that the gun was not real. Mr. Owens testified that when Mr. Webb pulled the gun, his daughter was absolutely stunned and afraid. Mr. Owens did not say anything about alcohol or about Mr. Webb’s being intoxicated.

¶8 While Mr. Owens was getting the cash, Mr. Webb talked about his financial problems and his need to take care of his daughter. Concerned for his life and for the little girl, Mr. Owens thought it was best to do what Mr. Webb asked and to stay calm and talk to him. The minimart’s policy required Mr. Owens to turn over the cash when confronted by a robber. Mr. Webb had his daughter go out to [200] the car. Mr. Webb told Mr. Owens that he was not going to hurt him. Mr. Webb handed the cup of coffee back to Mr. Owens, warned him not to call the police, and left. Mr. Owens immediately called 911 and reported the robbery.

¶9 At trial, the surveillance videotape of the robbery and photographs of the tape were shown to the jury. Mr. Owens told the jury that at the time he did not know whether Mr. Webb was going to shoot him. The 911 tape was also played for the jury. On the tape, Mr. Owens told the operator that the person who robbed him had a toy gun. He described it as a black plastic toy handgun. Mr. Owens stated that he was afraid that Mr. Webb would return. Mr. Owens asked the police to leave a patrol car parked at the minimart for the rest of the night.

¶10 An hour before the robbery at the minimart, Mr. Webb, a member of Alcoholics Anonymous (AA), called a former AA sponsor in Yakima. Mr. Webb asked if he could come over and stay for the night at the sponsor’s house. Mr. Webb had taken his daughter and left his wife, and now Mr. Webb and his daughter needed a place to stay. The sponsor testified that Mr. Webb was very upset and sounded intoxicated. The sponsor said at times Mr. Webb sounded rational and at other times he did not. The sponsor offered to pick up Mr. Webb and his daughter, but Mr. Webb refused the offer.

¶11 After the robbery, Mr. Webb called the sponsor a second time, sounding even more upset and intoxicated. Mr. Webb alternated between making sense and being incoherent. He was still worried that the sponsor would call the police. Mr. Webb stated that he had done something really big. He put his daughter on the telephone and told her to tell the sponsor what they did. The daughter said, “ We robbed a store.’ ” I EP at 64. During the call, Mr. Webb said that he had eluded police and was driving 80 m.p.h.

¶12 Mr. Webb and his daughter arrived at the sponsor’s house one and one-half hours later. The sponsor testified that Mr. Webb seemed so drunk that he could hardly stand up. Mr. Webb was getting sick and crying. The sponsor stated that Mr. Webb seemed so drunk or high that it [201] seemed impossible that he had driven from Thorp to Yakima. The sponsor tried to take care of the little girl and put her in his daughter’s room for safety. Mr. Webb sat down and went in and out of consciousness.

¶13 The sponsor tried to lie down for a while, but when he heard the little girl get up, he got her some food. She used the computer. They talked. The girl was “stunned,” “extremely polite,” and “measuring every word.” I RP at 70. The sponsor had not seen her like this before in the two years he had known her.

¶14 The sponsor made a telephone call. When he came back, Mr. Webb sat up and told the sponsor that he had to do it, that he was doing everything he could to raise money but it was not working, and it was not enough. Mr. Webb stated that he could not stay with his wife anymore and that he had to take care of his daughter.

¶15 The sponsor was afraid that Mr. Webb was going to leave with his daughter, and the sponsor feared for her safety. The police called and asked if Mr. Webb was there. The sponsor answered, “ £[Y]es,’ ” and twice said quietly, “ ‘Get here now.’ ” I RP at 73. Mr. Webb became suspicious and decided to leave right away. The sponsor tried to get Mr. Webb to leave the little girl with him.

¶16 Mr. Webb was arrested a few days later at another friend’s home in Yakima. His daughter was with a friend in northern California. Mr. Webb had decided to turn himself in. No weapons were discovered during a search of Mr. Webb, his car, and his friend’s home.

¶17 Deputy Benjamin Corbett was the first officer on the scene when Mr. Webb was arrested. The deputy testified that he had reviewed the store’s surveillance videotape. He thought the toy gun used by Mr. Webb looked real. The deputy testified that if he had been in the store, he would have pulled his gun.

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State v. Webb, 162 Wash. App. 195 (Wash. Ct. App. 2011).

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