                                                                                                              COURT OF`


                                                                                                          2015 FEB 18 An 9: 2D
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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                       DIVISION II

    STATE OF WASHINGTON,                                                                  No. 45228 -6 -II


                                         Respondent,


           v.




    GERALD LEWIS YANAC,                                                            UNPUBLISHED OPINION


                                         Appellant.

          JOHANSON, C. J. —             Gerald Yanac appeals his bench trial conviction for first degree


robbery.        Yanac argues, and we agree, that insufficient evidence supports the conclusion that


Yanac     made     an   implied threat       of    immediate force.          Accordingly, we reverse his first degree

robbery conviction, dismiss it with prejudice, and remand for further proceedings.

                                                            FACTS


          In August 2012, Yanac               entered a    bank       and   approached   the bank teller.'         Yanac wore


sunglasses and a        baseball cap    and appeared       to be "     fidgety"   and " suspicious."    Clerk' s Papers ( CP)


at   116. He     put a plastic   bag   on    the   counter at   the teller'   s station and stated, "   Money."     CP at 116.


Attempting        to clarify Yanac'     s    request,   the bank teller inquired, "        Money ?" and he responded,




1
     The facts   are undisputed.       Br.   of    Appellant    at   6 ( " Here, the trial court' s findings were based on
undisputed       facts. ").
No. 45228 -6 -II



 Money." CP at 116. She put one and five dollar bills into the bag. When the bank teller stopped

giving him money, Yanac              stated, "   More."     CP at 116. She put more money into Yanac' s bag until

finally   stating, " That'     s all."    CP    at   116. Yanac turned, left the bank, and was arrested about two


hours later.


          The State charged Yanac with possession of a stolen vehicle, first degree robbery, and first

degree theft. After a bench trial on stipulated facts, the trial court convicted Yanac of theft of a


motor vehicle and first degree robbery and dismissed the first degree theft charge. In addition to

the facts stated above, the trial court found that Yanac had " leaned into [the bank teller]' s personal


space" with the plastic bag, that the bank teller was " nervous and intimidated by [Yanac' s] repeated

demands for money,"             and that the bank teller felt that " she needed to comply to avoid harm to

herself or others, and that it was also bank policy to comply with demands for money for the same

reasons."     CP   at   116.     Based     on   its findings   of   fact, the   court concluded,   in   relevant part, "   That


 Yanac] impliedly threatened the immediate use of force through his actions and appearance while

demanding the money from [ the bank teller]' s person inside the Key Bank branch on Bay Street

in Port Orchard, WA            on   August 15, 2012."        CP at 117.


          Yanac appeals his first degree robbery conviction.

                                                            ANALYSIS


                                 I. INSUFFICIENT EVIDENCE OF AN IMPLIED THREAT


          Yanac argues that insufficient evidence supports his conviction for first degree robbery.

Specifically, he argues that the trial court' s findings of fact do not support its conclusion that Yanac

made an     implied threat          of   immediate force. We agree and hold that the trial court' s findings do


not support    the   conclusion          that Yanac     impliedly threatened the      immediate    use of   force.
No. 45228 -6 -II



                                 A. STANDARD OF REVIEW AND RULES OF LAW


         When a defendant challenges the sufficiency of the evidence after a bench trial, our review

is limited to determining whether substantial evidence supports the trial court' s findings of fact

and whether those findings support its conclusions of law. State v. Homan, 181 Wn.2d 102, 105-

06, 330 P. 3d 182 ( 2014). Unchallenged findings of fact are verities on appeal. Homan, 181 Wn.2d


at 106. We review the trial court' s conclusions of law de novo. Homan, 181 Wn.2d at 106. When


arguing insufficient evidence on appeal, the defendant admits the truth of the State' s evidence and

all reasonable   inferences that may be drawn from it.               Homan, 181 Wn.2d at 106 ( citing State v.

Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992)).


         A defendant commits " robbery" when he

         unlawfully takes personal property from the person of another or in his or her
         presence against his or her will by the use or threatened use of immediate force,
         violence, or fear of injury to that person or his or her 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 (      emphasis added).        A robbery conviction may be supported by evidence of any

threat that induces the owner to part with his property. State v. Handburgh, 119 Wn.2d 284, 293,

830 P. 2d 641 ( 1992).        The statutory definition of a " threat" includes both a direct or indirect intent

to   cause   bodily injury, damage          to property,       or   physical   confinement   or   restraint.   RCW


9A.04. 110( 28)( a)   -(c);   State v. Shcherenkov, 146 Wn. App. 619, 624 -26, 191 P. 3d 99 ( 2008),

review   denied, 165 Wn.2d 1037 ( 2009). We apply an objective test and ask " whether an ordinary


person in the victim' s position could reasonably infer a threat of bodily harm from the defendant' s

acts."   State v. Witherspoon, 180 Wn.2d 875, 884, 329 P. 3d 888 ( 2014).




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No. 45228 -6 -II


                                                 B. THE IMPLIED THREAT


          Because Yanac does not challenge the trial court' s findings of fact, they are verities on

appeal.    Homan, 181 Wn.2d             at   106. We, therefore, review the trial court' s findings to determine


whether, as a matter of          law, they      support        the   conclusion    that Yanac "   impliedly threatened the

immediate      use of     force through his     actions and appearance."             CP at 117.


          In State   v.   Farnsworth,           Wn.   App. ,             340 P. 3d 890, 892 -93 ( 2014), we addressed the


same issue as in this casethe sufficiency of the evidence to establish an implied threat to a bank

teller during an alleged robbery. We held that the defendant' s actions did not amount to an implied

threat because he " simply handed over a note instructing the teller to ` put the money in the bag'

 and] did not insinuate that he would take further action if the teller did not comply with the note' s

instructions." Farnsworth, 340 P. 3d at 894. We also rejected the argument that the teller' s reaction


is sufficient to justify finding an implicit threat of force. Farnsworth, 340 P. 3d 894.

          Here,   we are     faced   with     virtually identical facts.          Yanac took the    following      actions:   he


walked    into the bank;      acted "   fidgety "; moved the plastic bag into the bank teller' s personal space;

said   three   words, "    Money," " Money,"          and "     More ";    and   then left the bank.   CP   at   116. The trial


court   characterized        the three       words   that Yanac spoke as "           demands" for money.           CP at 118.


Regarding Yanac' s appearance, the trial court found that he appeared suspicious and fidgety, that

he was not a local customer of the bank, and that he was wearing a baseball cap and sunglasses.

          In addition, the trial court relied on the fact that the bank teller " felt she needed to comply

to   avoid   harm to herself     or others."         CP   at    116.     To the extent the trial court relied on the bank


teller' s subjective reaction to Yanac' s conduct, this was error. The appropriate inquiry is whether

an ordinary person in the bank teller' s position could reasonably infer a threat of bodily harm from


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No. 45228 -6 -II



Yanac'      s acts.    Witherspoon, 180 Wn. 2d           at   884. On these facts, there was no suggestion inferred


either from Yanac' s conduct or his words that he threatened to use immediate force against the

bank teller in        order   to   enforce     his demands for money.      An ordinary person in the bank teller' s

position, therefore, could not reasonably infer a threat of bodily harm from Yanac' s words and.

actions. We conclude that insufficient evidence supports this element of robbery.

                                                  C. THE STATE' S ARGUMENT


            The State relies on two cases to support its argument that there is sufficient evidence in this


case:      Shcherenkov        and   State    v.   Collinsworth, 90 Wn.     App.    546, 966 P. 2d 905 ( 1997),        review




denied, 135 Wn.2d 1002 ( 1998).                   But Shcherenkov is legally and factually distinguishable and we

believe that the Collinsworth court' s interpretation of an implied threat of force does not give effect

to all words in the robbery statute, RCW 9A.56. 190.

            In Shcherenkov, the primary issue was whether a jury instruction that permitted the jury to

find the threat        element of     robbery based      on an    implied threat   was appropriate.         146 Wn. App. at

624 -26.      We held that an implied threat of force is sufficient to support a robbery conviction.

Shcherenkov, 146 Wn. App. at 626. In this appeal, however, that question is not in dispute.

            Shcherenkov is         also   factually   distinguishable from this       case.    Shcherenkov was charged


with four separate robberies, and we considered whether the facts were sufficient to find the


necessary threat of immediate force or violence. Shcherenkov, 146 Wn. App. at 626 -27. During

the first three       robberies,    the defendant passed a note to the         bank tellers that   stated   explicitly, ' This


is   a   robbery. "'   Shcherenkov, 146 Wn. App. at 622 -23. During the fourth robbery, Shcherenkov' s

note      said, "'    Do   not     make   any     sudden      movements   or    actions.      I will be watching you.'"

Shcherenkov, 146 Wn.               App.   at   623.   During the fourth robbery, Shcherenkov also kept his hands


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No. 45228 -6 -II


in his   pockets.    Shcherenkov, 146 Wn.          App.     at   623. We held that it was reasonable for the bank


tellers to infer a threat of violence from the notes that stated explicitly that Shcherenkov was

robbing them. Shcherenkov, 146 Wn. App. at 628 -29. It was also reasonable for the teller in the

fourth robbery to suspect that Shcherenkov had a gun because his hands were in his pockets and

to infer   a   threat of violence     from his    statement      that   he   would "   be watching."        Shcherenkov, 146


Wn. App. at 629.

           Yanac, in      contrast,   merely    appeared     to be "    suspicious"      and "    fidgety"   and spoke three


words: " Money," " Money,"             and "   More."    CP at 116. Yanac' s conduct is factually distinguishable

from Shcherenkov' s conduct and is much more like the conduct in Farnsworth.

           In Collinsworth, Division One of this court announced a broad rule for interpreting implied

threats.       Yanac argues that under Collinsworth, any demand for money in a bank would be a

robbery.       The. State   argues    that Collinsworth      should guide       this   court' s   decision in this   case.   We


decline to follow Collinsworth here.


           Collinsworth involved five robberies and one attempted robbery, each with slightly .

different facts.        90 Wn. App. at 548 -50. In one case, the defendant walked into a bank and asked

for "' twenties, fifties,    and   hundreds ' in    a "`   firm, direct '     tone. Collinsworth, 90 Wn. App. at 550.

The teller      asked   if Collinsworth     was serious,    Collinsworth        replied, "` [Y] es' ... [    d] on' t give me a


dye   pack, '    put the cash in his bag, and walked out. Collinsworth, 90 Wn. App. at 550. In another

case,    Collinsworth       approached      the teller   and     said, "`    Give me all your fifties and hundreds.'


Collinsworth, 90 Wn.          App.    at   549. Because the teller did not understand, Collinsworth repeated


his " demand" and the teller complied. Collinsworth, 90 Wn. App. at 549.




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No. 45228 -6 -II



            The Collinsworth court recognized that there was no Washington case law that provided


guidance      in    determining           what    is "   necessary to establish robbery in circumstances where the

defendant does           not utilize overt physical or verbal                      threats."   90 Wn.   App.   at   552.   The court,


therefore,     decided to draw an analogy to federal case law interpreting the definition of

 intimidation,"          an element of federal bank robbery. Collinsworth, 90 Wn. App. at 552 -53.

            In United States         v.   Bingham, 628 F. 2d 548 ( 9th Cir. 1980), cert. denied, 449 U.S. 1092


 1981), the Ninth Circuit defined " intimidation" as " the willful taking in such a way as would place

an   ordinary      person       in fear   of   bodily harm." In United States v. Lucas, 963 F.2d 243, 244 ( 9th Cir.

1992),   the defendant entered a bank, put a bag on the counter, and passed the teller a note that said,

  Give      me all your         money,     put all your       money in the           bag. "' Lucas also told the teller verbally,

 Put it in the          bag. "' Lucas, 963 F. 2d at 244. The Ninth Circuit held that the defendant' s written

and oral demands, in addition to the teller' s testimony that she was terrified, was sufficient to find

intimidation. Lucas, 963 F.2d at 248.


            The federal bank robbery statute at issue in Bingham and Lucas requires proof of "force

and    violence"         or "   intimidation."           18 U. S. C. §          2113( a).   This statute is distinguishable from


Washington'         s   first degree robbery             statute,   RCW 9A. 56. 200, in two         ways.   First, the federal law


applies      only to bank          robberies.        Our statute applies to robberies in many different contexts.

Second, the element of "intimidation" is not the same as Washington' s " implied threat" element.


Intimidation is defined as " the willful taking in such a way as would place an ordinary person in

fear   of   bodily      harm." Bingham, 628 F. 2d                   at   548.    But Washington' s first degree robbery statute

requires us to focus on the defendant' s threatening acts separate from the taking of money or

property and not the manner of the taking itself. Witherspoon, 180 Wn.2d at 884. The element of


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No. 45228 -6 -II


a   defendant' s " threat,"     expressed or implied, is missing from the federal bank robbery statute.

Thus, we do not find the federal cases persuasive.

          Division One affirmed each of Collinsworth' s convictions and held that


           i]n each incident, Collinsworth made a clear, concise, and unequivocal demand for
          money. He also either reiterated his demand or told the teller not to include " bait"
          money    or "   dye   packs,"   thereby underscoring       the    seriousness      of   his intent.   No
          matter how calmly expressed, an unequivocal demand for the immediate surrender
          of the bank' s money, unsupported by even the pretext of any lawful entitlement to
          the funds, is fraughtwith the implicit threat to use force. " Any force or threat, no

          matter how slight, which induces an owner to part with his property is sufficient to
          sustain a robbery conviction."


Collinsworth, 90 Wn. App. at 553 -54 ( quoting State v. Ammlung, 31 Wn. App. 696, 704, 644 P. 2d

717 ( 1982)).    Based on this reasoning, any demand for money from a bank to which a defendant

has no legal right is an implicit threat of force and, therefore, a robbery. However, Division One' s

broad interpretation of an implicit threat does not give meaningful effect to all of the words in the


robbery statute, RCW 9A.56. 190, and blurs the line between theft and robbery.

          Where possible, we give effect to all words in a statute. State v. Roggenkamp, 153 Wn.2d

614, 624 -25, 106 P. 3d 196 ( 2005).          First degree robbery requires the State to prove ( 1) the taking

of "personal property from the person of another" and ( 2) that the taking was done " by the use or

threatened    use of   immediate force,       violence, or   fear   of   injury   to that   person."   RCW .9A.56. 190.


First degree theft, in contrast, requires the State to prove only that the defendant committed theft

of "[ p] roperty of    any   value ...    taken from the   person of another."        RCW 9A.56. 030( 1)( b).


          The plain language of the first degree theft and first degree robbery statutes show that the

legislature recognized that there are circumstances where a defendant could take personal property

from the person of another without a threat of immediate force, violence, or fear of injury. As the

language of the first degree theft statute confirms, the legislature did not intend to punish

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No. 45228 -6 -II



defendants for first degree robbery who take property from another without a direct or implied

threat but intend to       punish       them instead for first degree theft.     Robbery is intended to punish the

taking by force      or   threat   of   force   and not   just the taking.   Witherspoon, 180 Wn.2d     at   888 ( "` The


nature of   the   crime of    robbery includes the threat            of violence against another person. "' (   quoting


State v. Rivers, 129 Wn.2d 697, 713, 921 P. 2d 495 ( 1996))).


         But if any demand for money in a bank establishes a threat of violence, the distinction

between robbery and first degree theft is blurred considerably and the clear, statutory requirement

that the State prove that a threat occurred becomes meaningless. In Farnsworth, we agreed that a


robbery conviction based on its facts would have blurred the lines between theft and robbery and

that if the legislature wanted "to define all thefts from financial institutions as robberies, it may act

accordingly." 340 P. 3d at 895 n.7. The legislature has not acted to do this.


         Yanac entered the bank, looked suspicious and fidgety, put a bag on the counter in front of

the   bank teller,   and "   demanded" money          by    saying, " Money,"   " Money,"   and "   More."   CP at 116.


In order to find a threat of immediate force here, the trial court must have inferred that Yanac' s


demand implied that if the bank teller did not comply, immediate force would be the consequence.

Like in Farnsworth, however, this inference is simply not reasonable where Yanac' s actions did

not insinuate any threat of violence. Even making all reasonable inferences from this evidence in

the State' s favor, this evidence is insufficient to support a conclusion that Yanac made an implied

threat of immediate force.


          Accordingly, we hold that the trial court' s findings do not support the conclusion that

Yanac made an implied threat of immediate force because an ordinary person in the bank teller' s

position could not have reasonably inferred such a threat from Yanac' s words or conduct. Where


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No. 45228 -6 -II



there is insufficient evidence as a matter of law to support a conviction, Yanac is entitled to


dismissal with prejudice of his first degree robbery conviction. State v. Crediford, 130 Wn.2d 747,

761, 927 P. 2d 1129 ( 1996).   We reverse his first degree robbery conviction, dismiss it with

prejudice, and remand for proceedings consistent with this opinion.


        A majority of the panel having deteimuned 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:




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