State Of Washington, V Bobby Ray Mckinney ( 2014 )

FILED
Uet.LJR T OF APPEALS
DIVISION II
2014 MAi 28
AN 8: 31
STATE e''
WASHINGTON
S
IN THE COURT OF APPEALS OF THE STATE OF WASHING
DIVISION II
STATE OF WASHINGTON, No. 44827 -1 - II
Respondent,
v.
BOBBY RAY McKINNEY, UNPUBLISHED OPINION
Appellant.
LEE, J. — Bobby Ray McKinney appeals from his convictions for first degree robbery,
first degree burglary, conspiracy to commit second degree robbery, and conspiracy to commit
first degree burglary. He argues that ( 1) his convictions for both conspiracy to commit second
degree robbery and conspiracy to commit first degree burglary violate double jeopardy, and ( 2)
the State did not present sufficient evidence that he was an accomplice to first degree robbery or
to first degree burglary. The State concedes the first error but not the second. We accept the
State' s concession, affirm the convictions for first degree robbery and first degree burglary, and
remand for resentencing with instructions to vacate one of the conspiracy convictions. 1
On April 17, 2012, Gabriele Senn, a 68- year - widow suffering from cancer, was living
old
alone at home, watching television when two men, dressed in black and wearing masks, entered
her home uninvited. One man, who was described as " oriental," pointed what looked like a gun
at her. The man with the gun demanded to know where Senn kept her safe. Senn refused to tell
A commissioner of this court initially considered McKinney' s appeal as a motion on the merits
under RAP 18. 14 and then transferred it to a panel of judges.
No. 44827 -1 - II
him. The men rummaged around in her bedroom, where she kept her jewelry box. The man
with the gun demanded Senn' s car keys and credit cards. He obtained her debit card and
demanded her PIN. She gave him a fake number, and he left. The other man remained,
collecting jewelry and other valuables. The man with the gun returned, upset that the PIN did
not work. Senn was able to go to her kitchen, where she called 911. Although she hung up
before speaking with the 911 operator, the men discmovered that she had called 911 and fled the
house. Police responded and found Jesse Grimes, dressed in black, in possession of a number of
Senn' s belongings.
Investigation led the police to interview McKinney two days later. McKinney had
occasionally visited Senn at her home. McKinney told the detectives that about three weeks
before the burglary' and robbery, he and Grimes and Monaroes Sar discussed their need for
money and the possibility of stealing some items to sell. McKinney told them that he knew of an
elderly female homeowner who kept cash and valuables in her home. He also told them she had
a safe. The three men went to Senn' s house, where McKinney showed Grimes and Sar a way to
scale Senn' s fence and showed them a bedroom window that Senn always kept unlocked. The
men did not commit the burglary and robbery that night. Sar called McKinney several times,
asking when they could go to Senn' s house, but McKinney kept putting him off. McKinney did
not participate in any additional planning of the burglary and robbery, but he did not voice any
objection to the plan, did not notify police and did not warn the victim. He did, however, intend
to share in the proceeds of the robbery. He was not present when Grimes and Sar committed the
burglary and robbery.
By amended information, the State charged McKinney with one count of first degree
burglary, one count of first degree robbery, one count of conspiracy to commit first degree
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No. 44827 -1 - II
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burglary and one count of conspiracy to commit second degree robbery. He waived his right to
a jury. The trial court found him guilty on all four counts. As to the first degree robbery and
first degree burglary counts, the court made the following pertinent findings:
9. The defendant was an accomplice to Grimes and [ Sar]' s robbery and
burglary Senn' s home. The defendant, with knowledge that it would promote
at
and facilitate the commission of robbery and burglary, did aid in planning and
committing those crimes. Specifically, the defendant did the following: he
identified Senn to several others, including Grimes and [ Sar], as a prime and
particularly vulnerable target to be robbed in her home; he identified the valuable
property believed to be in Senn' s home that would make her a prime target; he led
a scouting mission to Senn' s home that included Grimes, Monaroes Sar, and
Dennis Yoeun, where he showed them the location of her home and points of
entry onto the property and into the residence. The defendant took these steps
intending that one or more persons would enter Senn' s home while she was
present and would threaten the use of immediate force, violence, and fear of
injury to Senn in order to gain her compliance in turning over her property to
them. The defendant intended to receive a portion of the profits from the property
stolen from Senn.
10.The defendant did not terminate his complicity in the effort to rob
Senn and commit a burglary at her home prior to the commission of those crimes.
He also did not give timely warning to law *
enforcement authorities and did not
otherwise [ make] a good faith effort to prevent the commission of the crimes.
Clerk' s Papers 34- 35.
First, McKinney argues that his convictions for both conspiracy to commit second degree
robbery and conspiracy to commit first degree burglary violate his right against double jeopardy
because there was only one plan to commit two crimes. " Whether the object of a single
agreement is to commit one or many crimes, it is in either case that agreement which constitutes
the conspiracy which the statute punishes." State v. Bobic, 140 Wash. 2d 250, 264 -65, 996 P.2d
2
The State also charged McKinney with second degree burglary but dismissed that charge at the
end of the State' s case -in- chief.
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No. 44827 -1 - II
610 ( 2000). The State concedes that McKinney is correct and that one of his conspiracy
convictions must be vacated. We accept the State' s concession.
Second, McKinney argues that the State failed to present sufficient evidence to prove
beyond a reasonable doubt that he was an accomplice to robbery and burglary. Evidence is
sufficient if, when viewed in a light most favorable to the State, it permits any rational trier of
fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119
Wash. 2d 192, 201, 829 P.2d 1068 ( 1992). " A claim of insufficiency admits the truth of the State' s
evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wash. 2d at
201.
For the trier of fact to find McKinney guilty of being an accomplice to robbery and
burglary, the State must prove that "[ w] ith knowledge that it will promote or facilitate the
commission of the crime, he ... [ s] olicit[ ed], command[ ed], encourage[ d], or request[ ed] such
other person to commit it; or [ a] id[ ed] or agree[ d] to aid such other person in planning or
committing it." RCW 9A.08. 020( 3)( a). McKinney acknowledges that there may have been
sufficient evidence to show he initially shared in the planning of the robbery of Senn and the
burglary of her home. However, several weeks passed before the robbery and burglary were
committed, and during that interval, he did not continue his involvement in the plan or the
crimes. Thus, he contends there was insufficient evidence that he was still an accomplice at the
time the robbery and burglary were committed. State v. Castro, 32 Wash. App. 559, 564, 648 P.2d
485, review denied, 98 Wash. 2d 1007 ( 1982).
But in order to be excused from accomplice liability through termination of participation,
the defendant must show t hat he " terminat[ ed] his ... complicity prior to the commission of the
crime, and either [ gave] timely warning to the law enforcement authorities or otherwise [ made] a
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No. 44827 -1 - II
good faith effort to prevent the commission of the crime." RCW 9A. 08. 020( 5)( b) ( emphasis
added). Taking as true McKinney' s statement and. testimony that he had had a change of heart
about the robbery and burglary, he fails to show that he either gave timely warning to law
enforcement or otherwise made a good faith effort to prevent the commission of the crimes. His
putting off' of Sar was insufficient to excuse him from criminal liability for his earlier actions
in encouraging and planning the robbery and burglary. The State presented sufficient evidence
to prove that McKinney was an accomplice to robbery and burglary.
We affirm the convictions for first degree robbery and first degree burglary, and remand
for resentencing with instructions to vacate one of the conspiracy convictions.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
Maxa, P. J.
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