State v. Coonrod

1

STATE OF WASHINGTON, Respondent, v. MARX WAYNE COONROD, Appellant.

No. 53527-1-II

Court of Appeals of Washington, Division 2

September 27, 2022

UNPUBLISHED OPINION

MAXA J.

Marx Coonrod appeals his convictions of three counts of first degree robbery and one count of attempted first degree robbery. The convictions arose from two incidents in which a man entered the same bank with a bandana covering his face and a hoodie over his head and demanded money, and a third incident in which a man approached the bank with a bandana on his face but left when he saw a security guard.

We hold that the trial court did not err in (1) denying Coonrod's request for a lesser included offense jury instruction regarding first and second degree theft and (2) excluding evidence that another person was at the scene during the third incident. We also decline to address the multiple assertions Coonrod makes in his statement of additional grounds (SAG). Accordingly, we affirm Coonrod's convictions.

FACTS

Bank Incidents

On February 1, 2016, a man entered a bank in Vancouver wearing a bandana over his face, sunglasses, a dark beanie style hat and a hood over his head. The man approached a teller's window and pushed a customer waiting there aside. He then demanded that the teller give him 50s and 100s. The teller gave him money out of her drawer. The man then went to another teller and told her to give him all her 50s and 100s. The teller gave him the money she had in her top drawer. The man took a total of $1,690 from the bank.

The man left the bank and headed in the direction of a closed pizza restaurant next door. Bank employees noticed that he had a distinctive gait, somewhat like a limp. Employees at an insurance office next door saw the man walk toward an alley behind the closed pizza restaurant.

In the subsequent investigation the police located a dark beanie style hat in the alley by the closed pizza restaurant. The hat was dry while the rest of the ground was wet.

On March 16, a man entered the same bank wearing a blue bandana on his face, sunglasses, and a hood over his head. The man went to a teller and told her to give him 50s and 100s. At some point he said "ándale" - "hurry up" in Spanish. The teller handed him money. The man took a total of $4,850.

The man exited the bank heading in the direction of the closed pizza restaurant. Bank employees again noticed a distinctive gait. Bank employees who were present during both the February 1 and March 16 incidents were convinced that the same person was involved in both incidents. An employee at the insurance office observed the man walk to the alley behind the closed pizza restaurant and then observed a person in a white truck with ladder racks drive out from behind the building.

On April 22, a man wearing a bandana over his face and a hoodie walked by the insurance office and toward the bank. An insurance employee stated that the robber was back. A bank employee who had been involved in a prior incident started crying when she saw him. However, the bank had hired a security guard, who would open the locked front door for customers. The man walked up to the bank but did not enter and instead walked back toward the closed pizza restaurant. The man had the same distinctive gait. The man walked to the alley behind the closed restaurant and drove away in a white truck with ladder racks. A bank employee and an insurance office employee both saw the man and thought he was the same person who had taken money from the bank before.

One of the insurance office employees ran outside and took pictures of the man and the white truck. The employee recognized the truck as the same one, parked in the same place, that she had seen after the March 16 robbery. Investigation

Police submitted the DNA from the beanie hat for testing. The DNA matched Coonrod. Police went to Coonrod's apartment where an officer observed him leaving. The officer observed that he walked with a distinctive gait and that he got into a white truck with ladder racks.

Police obtained a search warrant for Coonrod's home and truck. They discovered a blue bandana in the home and they found a beanie style hat and sunglasses in the truck. Police obtained cell phone records for Coonrod's phone. The records showed that Coonrod's phone was turned off or not connected to his cellular network at the time of the three incidents.

When officers questioned Coonrod, he admitted going to the bank on April 22 but stated that he decided not to enter after seeing the security guard because he had alcohol on his breath.

Coonrod also acknowledged that it was him and his truck in the photographs taken by the insurance company employee. And Coonrod stated that he walked with a slight limp due to surgery on his hips and screws in his knee.

The State charged Coonrod with three counts of first degree robbery and one count of attempted first degree robbery. Two of the first degree robbery counts were based on the February 1 incident, where the man demanded money from two different tellers. Trial

At trial, one of the bank employees testified that on February 1 the man walked into the bank and said, "[T]his is not a joke. It's a bank robbery." 2 Report of Proceedings (RP) at 224. He then went to one of the tellers, demanded money, and again stated that it was a bank robbery or a robbery. None of the other bank employees testified that the man said this.

Regarding the March 16 incident, one of the bank employees stated that the man said, "[E]verybody stay where you are" when he first came into the bank. 1 RP at 90. And when he left he again stated the same thing. Another bank employee stated that the man said, "[N]o one move." 2 RP at 306. None of the other bank employees testified that the man made these statements. Another bank employee said that when the man said "ándale" it was "very loud and very scary for everyone in the branch." 2 RP at 243.

Coonrod sought to present evidence that there was another man named Doug Shattuck at the bank on April 22 who also was wearing a hoodie. Shattuck was there using the automated teller machine (ATM). Coonrod represented that bank employees thought that the man they identified as the person who had taken money from the bank before had used the ATM on April 22. Coonrod argued that the evidence was needed to discredit the testimony of bank employees who identified Coonrod as the man in the previous incidents. The trial court granted the State's motion in limine to exclude this evidence based on relevance.

At the end of the trial, Coonrod requested that the jury be instructed on the lesser included offenses of first degree theft and second degree theft. The trial court denied his request, concluding that theft was not a lesser included offense to first degree robbery.

The jury found Coonrod guilty as charged. Coonrod appeals his convictions.

ANALYSIS

A. Lesser Included Offense Instruction - Theft

Coonrod argues that the trial court erred in denying his request for a lesser included offense instruction regarding first degree and second degree theft. We disagree.

1. Legal Principles

RCW 10.61.006 provides a defendant with a statutory right to a lesser included offense instruction. State v. Condon, 182 Wn.2d 307, 316, 343 P.3d 357 (2015). A lesser included offense instruction must be given when two prongs are satisfied "(1) each of the elements of the lesser offense is a necessary element of the offense charged (legal prong) and (2) evidence in the case supports an inference that the lesser crime was committed (factual prong)." State v. Coryell, 197 Wn.2d 397, 400, 483 P.3d 98 (2021) (citing State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)).

The party requesting the lesser included offense instruction is entitled to the instruction, only if both prongs of the Workman test are satisfied. Condon, 182 Wn.2d at 316. We review the legal prong of this test de novo, and we review the factual prong for an abuse of discretion. Id. at 315-16.

2. Factual Prong

We do not need to address the legal prong of the Workman test because we conclude that the factual prong is not satisfied under the facts of this case.

Under the factual prong, "[a] jury must be allowed to consider a lesser included offense if the evidence, when viewed in the light most favorable to the defendant, raises an inference that the defendant committed the lesser crime instead of the greater crime." State v. Henderson, 182 Wn.2d 734, 736, 344 P.3d 1207 (2015). But "the evidence must affirmatively establish the defendant's theory of the case - it is not enough that the jury might disbelieve the evidence pointing to guilt." State v. Fernandez-Medina, 141 Wn.2d 448, 456, 6 P.3d 1150 (2000). To give the instruction, there must be enough evidence that a jury could rationally convict the defendant of the lesser offense and acquit the defendant of the greater offense. Id.

The issue here is whether a jury could find that Coonrod did not threaten the use of immediate force, violence, or fear of injury to obtain or retain possession of the bank's money or to prevent or overcome resistance to the taking. "[A] theft does not rise to the level of a robbery because it involves no use or threat of force to effectuate the same outcome: taking another person's property." State v. Farnsworth, 185 Wn.2d 768, 779, 374 P.3d 1152 (2016).

RCW 9A.04.110(28) defines "threat" as "to communicate, directly or indirectly the intent" to take a certain action. The test for an indirect threat of force is an objective one: whether" 'an ordinary person in the victim's position could reasonably infer a threat of bodily harm from the defendant's acts.'" Farnsworth, 185 Wn.2d at 776 (quoting State v Witherspoon, 180 Wn.2d 875, 884, 329 P.3d 888...