State v. Vladovic , 99 Wash. 2d 413 ( 1983 )

Dimmick, J.

We here review an unpublished opinion of the Court of Appeals affirming the conviction of John Anthony Vladovic for attempted robbery in the first degree, robbery in the first degree, and four counts of kidnapping in the first degree. The court also struck the finding that Vladovic was armed with a firearm on both robbery counts. We affirm the Court of Appeals.

This case arises from an incident at Bagley Hall on the University of Washington campus. An armed man wearing a ski mask entered the chemistry department at Bagley Hall. He secured the area by gathering the five employees from various offices into one room, forcing them to lie on the floor, binding their hands and taping their eyes. The armed man then admitted one or more confederates. The robbers removed the employees' wallets from their pockets but left the wallets at the scene. After the incident one employee, Mr. Jensen, discovered $12 was missing. When apprehended, petitioner had $30 on his person.

One robber took Mr. Jensen, the storeroom manager, into another room where the chemistry department's safe was kept. The safe contained $7,000 worth of platinum crucibles. The robber, unable to open the safe, began to unbind Mr. Jensen so that he could open the safe. The police then arrived. The robber who was wearing the green ski mask disappeared. Another robber, wearing a different colored ski mask, exchanged gunfire with the police and then surrendered. When apprehended he was still wearing the ski mask. This man was identified as Robert May, petitioner's codefendant at trial.

Petitioner was apprehended as he walked out of the storeroom on the same floor where the above events took place. He was not wearing a mask at the time, nor was he armed. A gun and green ski mask were later found in the same general area where petitioner had been found. Petitioner testified that he was in Bagley Hall to meet a student and was forced into the storeroom by one of the robbers. He also testified that during his captivity he saw several armed men escape through a tunnel system running under the university campus when the police arrived.

The arresting officer testified that upon his arrest petitioner made several inculpatory statements. Petitioner denied making those statements.

The jury found petitioner guilty of attempted robbery in the first degree for attempting to steal the contents of the safe, robbery in the first degree for stealing money from Mr. Jensen's wallet, and four counts of kidnapping in the first degree for restraining the chemistry department employees by using or threatening to use deadly force. Petitioner was not charged with kidnapping Mr. Jensen. The jury entered special verdicts finding that petitioner was armed with a deadly weapon which was a firearm during the commission of all the offenses. Petitioner was sentenced to 10 years' imprisonment for attempted robbery, life imprisonment for robbery, and life imprisonment for three of the kidnapping counts, all to run concurrently. Petitioner was also sentenced to 20 years' imprisonment for the remaining count of kidnapping, to run consecutively with the other sentences.

Petitioner's counsel, deeming the appeal to be without merit, moved to withdraw before the Court of Appeals pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396, reh'g denied, 388 U.S. 924 (1967) and State v. Koehler, 73 Wn.2d 145, 436 P.2d 773 (1968). The Court of Appeals granted that motion. Petitioner filed a pro se brief. The Court of Appeals affirmed the convictions and sentences but struck the sentence enhancement under the firearm statute, RCW 9.41.025, as to the counts of robbery and attempted robbery. We granted the petition for review and appointed an attorney to prepare a supplemental brief.

I

The primary issues presented by this appeal are whether the doctrine of merger or the constitutional guaranty against double jeopardy prohibits multiple convictions for attempted robbery, robbery and kidnapping. We hold that the offenses do not merge nor does double jeopardy apply. Several other issues will also be discussed including petitioner's challenge to the sufficiency of the evidence and his challenge to the special verdicts finding he was armed with a firearm.

Petitioner was convicted of robbery in the first degree, attempted robbery in the first degree and kidnapping in the first degree pursuant to the following statutes:

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

(1) A person is guilty of robbery in the first degree if in the commission of a robbery or of immediate flight therefrom, he:

(b) Displays what appears to be a firearm or other deadly weapon . . .

RCW 9A.56.200.

(1) A person is guilty of an attempt to commit crime if, with intent to commit a specific crime, he does any act which is a substantial step toward the commission of that crime.

RCW 9A.28.020.

(1) A person is guilty of kidnaping in the first degree if he intentionally abducts another person with intent:

(b) To facilitate commission of any felony or flight thereafter . . . [The underlying felony charged hereunder was the robbery of Mr. Jensen.]

RCW 9A.40.020.

The following definitions apply in this chapter:

(1) "Restrain" means to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with his liberty. Restraint is "without consent" if it is accomplished by (a) physical force, intimidation, or deception,. . .

(2) "Abduct" means to restrain a person by . . . (b) using or threatening to use deadly force . . .^[1]

RCW 9A.40.010.

Petitioner urges that his kidnapping convictions must be vacated. He asserts that his kidnapping convictions "merge" into his convictions for robbery and attempted robbery.

The leading case in this state on the merger doctrine as applicable here² is State v. Johnson, 92 Wn.2d 671, 600 P.2d 1249 (1979) (Johnson I). In that case, the defendant was convicted of two counts each of first degree rape, first degree kidnapping and first degree assault. The basis for these convictions was a single incident during which the defendant threatened and restrained two girls in order to rape them. The applicable first degree rape statute required the State to prove conduct constituting at least one additional crime other than rape in order to prove first degree rape. Kidnapping and assault were both listed as such additional crimes, although no particular degree was required. This court held that the assaults and kidnappings were merely incidental to and not separate and distinct from the rapes. Because proof of the assaults and kidnappings were necessary elements to prove first degree rape, they merged into the rape and were not separably punishable.

This analysis is in accord with Whalen v. United States, 445 U.S. 684, 63 L. Ed. 2d 715, 100 S. Ct. 1432 (1980). The defendant there was convicted both of rape and of murdering the same victim in the perpetration of the rape. The first degree murder statute at issue required proof that the murder was done in the course of six specified felonies, including rape. The Court held that since proof of rape was necessary to prove first degree murder under the statutory scheme, Congress had not authorized cumulative punishment for the rape and the killing committed in the course of the rape.

We recently explained our holding in Johnson I regarding merger as follows:

State v. Johnson, supra, held that first degree rape, kidnapping and assault merged into one crime, that of first degree rape. The issue was the "pyramiding" of charges as a way of inflaming the jury when the legislature had clearly intended, in enacting statutes distinguishing different degrees of rape as class A, B, or C felonies, to punish defendant only once for the assault and/or kidnapping attending the first degree rape.

The legislature, we determined, intended not to allow the prosecutor to obtain convictions on the separate crimes, but rather to increase the punishment level for first degree rape by making other criminal conduct incident to that rape an aggravating factor leading to a class A felony. Since the same evidence (of the attendant assault and kidnapping) is required to convict of first degree rape, according to the intent of the legislature and our same evidence test, those crimes merged into the higher degree of the crime.

But Johnson is not determinative of the case before us, as proof of the separate act preceding the statutory rape was not necessary to proof of the statutory rape, and the legislature has not designated that the separate acts should merge.

State v. Johnson, 96 Wn.2d 926, 936, 639 P.2d 1332 (1982) (Johnson II).

The conclusion reached in Johnson II applies in this case. Proof of kidnapping is not necessary to prove the robbery or attempted robbery. Thus we cannot conclude that the Legislature intended that the offenses of robbery and attempted robbery merge into a kidnapping conviction.

Our only apparent divergence from the above analysis occurred in State v. Allen, 94 Wn.2d 860, 621 P.2d 143 (1980), which petitioner relies upon. In Allen we determined that, under the facts of that case, the kidnapping was separate and distinct from the robbery and thus the case fell within an exception to the merger doctrine set forth in Johnson I. There is dictum in Allen to the effect that had the kidnapping merely been incidental to the robbery, the former offense would have " merge [d] into the robbery as a matter of law." Allen, at 864. That statement is not in accord with either Johnson I or II and we do not now adhere to it. We reaffirm our holdings that the merger doctrine is a rule of statutory construction which only applies where the Legislature has clearly indicated that in order to prove a particular degree of crime (e.g., first degree rape) the State must prove not only that a defendant committed that crime (e.g., rape) but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes (e.g., assault or kidnapping). Pursuant to this rule, kidnapping does not merge into first degree robbery.

Conversely, does robbery merge into kidnapping in the first degree under the above principles? The first degree kidnapping statute applicable in this case specifically requires proof of another felony in order to elevate the crime to first degree kidnapping. RCW 9A.40.020(l)(b). Accordingly, the merger doctrine could apply to preclude a conviction for such additional crime if the crime was merely incidental to the kidnapping. Petitioner specifically refuses to argue that the robbery merges into the kidnapping. In fact, when petitioner's counsel was asked at oral argument about this possibility, it was summarily rejected by him. However, for purposes of a complete analysis of the merger doctrine we examine that possibility.

An exception to the merger doctrine expressed in Johnson I and applied in Allen is that if the offenses committed in a particular case have independent purposes or effects, they may be punished separately. The robbery conviction in the case before us cannot stand unless it involved "some injury to the person or property of the victim or others, which is separate and distinct from and not merely incidental to the crime of which it forms an element." Johnson I, at 680. Petitioner was charged with robbing Mr. Jensen. He was charged and convicted of kidnapping four people other than Mr. Jensen. The kidnapping charges involved forcing these four people to lie on the floor, binding their hands and taping their eyes. The robbery charge arose when money was taken from Mr. Jensen after the display of what appeared to be a deadly weapon. Because the injuries of the robbery and kidnappings involved different people, they clearly created separate and distinct injuries. Accordingly, petitioner's robbery conviction does not merge into his kidnapping convictions.

II

Petitioner next argues that even if the offenses do not merge, double jeopardy prohibits multiple punishments for robbery and kidnapping.

The United States Supreme Court recently held that the merger doctrine did not preclude multiple convictions for importing marijuana and for conspiring to distribute the same marijuana. Albernaz v. United States, 450 U.S. 333, 67 L. Ed. 2d 275, 101 S. Ct. 1137 (1981). The Court, at page 344, answered the defendants' double jeopardy arguments as follows:

Last Term in Whalen v. United States, [445 U.S. 684, 63 L. Ed. 2d 715, 100 S. Ct. 1432 (1980)] this Court stated that "the question whether punishments imposed by a court after a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized." ... In determining the permissibility of the imposition of cumulative punishment for the crime of . . . unintentional killing in the course of rape, the Court recognized that the "dispositive question" was whether Congress intended to authorize separate punishments for the two crimes. . . . This is so because the "power to define criminal offenses and to prescribe punishments to be imposed upon those found guilty of them, resides wholly with the Congress." Ibid. As we previously noted in Brown v. Ohio, [432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977)] ”[w]here consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." 432 U. S., at 165. Thus, the question of what punishments are constitutionally permissible is not different from the question of what punishment the Legislative Branch intended to be imposed. Where Congress intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution.

(Footnote omitted.) We applied this reasoning in Johnson II, at page 937.

Additionally, the constitutional guaranty against double jeopardy protects a defendant from a second trial for the same offense and against multiple punishments for the same offense. Whalen v. United States, supra. This court has repeatedly rejected the notion that offenses committed during a "single transaction" are necessarily the "same offense". State v. Roybal, 82 Wn.2d 577, 512 P.2d 718 (1973). In order to be the "same offense" for purposes of double jeopardy the offenses must be the same in law and in fact. If there is an element in each offense which is not included in the other, and proof of one offense would not necessarily also prove the other, the offenses are not constitutionally the same and the double jeopardy clause does not prevent convictions for both offenses. Roybal, at 581.

A review of the robbery and kidnapping statutes involved in the instant case reveals that each offense includes an element not included in the other. The elements of robbery, as charged in this case, are: (1) a taking of personal property (2) from the person or in one's presence (3) by the use or threatened use of force, or violence, or fear of injury, (4) such force or fear being used to obtain or retain possession of the property, and (5) displaying what appeals to be a deadly weapon. RCW 9A.56.190 and .200. Conversely, the elements of kidnapping, as charged herein, are: (1) intentionally abducting the victim (2) to facilitate the commission of a felony. RCW 9A.40.020(1)(b). "Abduct" means to restrain the victim's movements without his consent by use or threatened use of deadly force. RCW 9A.40.010(1) and (2). In order to prove robbery, the State must prove a taking of property, which is not an element of kidnapping. To prove kidnapping, the State must prove the use or threatened use of "deadly force". Robbery does not include an element of "deadly force" but only requires a taking by "force" and the display of what appears to be a deadly weapon. Since each offense includes an element not included in the other and proof of one does not necessarily prove the other, the offenses are not the same under Roy-bal. Accordingly, double jeopardy does not prohibit petitioner's convictions for both offenses.

Ill

Petitioner challenges the sufficiency of the evidence presented at trial. The test which we apply to such challenges is "whether, after viewing the evidence most favorable to the State, any rational trier of fact could have found the essential elements of [the crime] beyond a reasonable doubt." State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). Petitioner relies on Green in arguing that his kidnapping convictions cannot stand because the acts did not bear the indicia of a true kidnapping. We stated in Green that an ultimate killing of a victim does not itself constitute the restraint necessary to prove kidnapping. Green is inapposite in the instant case since, as discussed above, the restraint of the four employees was a separate act from the robbery of Mr. Jensen. Therefore, the robbery of Mr. Jensen could not supply the restraint element of the kidnappings. We have reviewed petitioner's remaining challenges to the sufficiency of the evidence and find them to be without merit.

IV

Petitioner also challenges the jury's special finding that he was armed with a deadly weapon, which was a firearm, during the commission of the offenses. First, he assigns error to the trial court's failure to instruct the jury that it must be convinced beyond a reasonable doubt that he possessed such a weapon, as required by State v. Tongate, 93 Wn.2d 751, 613 P.2d 121 (1980).

There is no question that real firearms were in fact used in the instant case. The victims saw the man in the green mask with a .45 caliber pistol. The police exchanged gunfire with one of the robbers, petitioner's codefendant May. A .45 caliber pistol and green mask were found near petitioner at the time of his arrest. The other weapon, used by May, was also found. Both guns were loaded with real bullets. Petitioner does not dispute these facts. He argues only that he was not the man in the green mask. The verdict reflects that the jurors believed petitioner was the man in the green mask and evidence exists to support this conclusion.

With these facts before us, we hold that the jury could have reached no other result than that the crimes were committed by means of a real firearm. There simply is no reasonable inference to the contrary. Accordingly, the trial court's failure to give the required instruction as to the standard of proof is harmless beyond a reasonable doubt and is not reversible error. See State v. Claborn, 95 Wn.2d 629, 628 P.2d 467 (1981); State v. Hall, 95 Wn.2d 536, 627 P.2d 101 (1981).

Petitioner's second challenge to the jury's special findings is based upon State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978). In Workman we held that RCW 9.41.025, the firearm statute requiring enhancement of a sentence when a crime is committed with a firearm, may not be applied to first degree robbery convictions.³ The Court of Appeals applied Workman and struck the firearm findings as to the robbery and attempted robbery convictions. The State did not appeal this ruling.

The Court of Appeals, however, did not discuss petitioner's contention that the principles outlined in Workman preclude the application of the enhancement provisions of RCW 9.41.025 to the convictions for first degree kidnapping. In analyzing the robbery statutes in Workman, we noted that the presence of a deadly weapon was one of the factors which differentiates first from second degree robbery. Thus, we concluded that the first degree robbery statute included a sentence enhancement provision intended to deal with crimes involving firearms and that the additional sentence enhancement provisions of the firearm statute were not applicable to the first degree robbery conviction. This reasoning does not apply where, as here, the crime of first degree kidnapping does not include the possession of a weapon as an element. See RCW 9A.40.020. We therefore hold that the penalty enhancement provisions of RCW 9.41.025 apply to the first degree kidnapping convictions. This holding is in accord with State v. Adlington-Kelly, 95 Wn.2d 917, 631 P.2d 954 (1981), wherein we held that the provisions of RCW 9.41.025 were applicable to the crime of first degree assault since possession of a firearm was not a necessary element of assault.

We find the remaining assignments of error to be without merit; therefore, since we hold neither the doctrine of merger nor double jeopardy applies, petitioner's convictions are hereby affirmed. The findings that petitioner was armed with a firearm are stricken as to the convictions of robbery and attempted robbery. The findings that the petitioner was armed with a deadly weapon, which was a firearm, during the four kidnappings are affirmed.

Stafford, Brachtenbach, and Dolliver, JJ., and Cunningham, J. Pro Tern., concur.

[1] 1 note that the definition of “abduction" in the kidnapping statutes does not require movement or asportation of the victims. One commentator suggests this is a major defect in the statute and that the Washington Legislature should amend RCW 9A.40.010 to include a movement element. Survey of Washington Law, Criminal Law, Merger of Crimes, 17 Gonz. L. Rev. 547 (1982).

2 Although the term "merger" is used in several different contexts, we refer to it herein as a doctrine of statutory interpretation used to determine whether the Legislature intended to impose multiple punishments for a single act which violates several statutory provisions. Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932).

3 RCW 9.41.025 has since been amended to allow application to convictions of first degree robbery. See Laws of 1981, ch. 258, § 1. The amendment was passed after petitioner's conviction, however.