                                                                                                                    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BOBBY RAY McKINNEY,                                                     UNPUBLISHED OPINION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
                                                                    2
No. 44827 -1 - II


                                                                                                        2
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 Wn.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.


                                                                     3
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

Wn.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 Wn.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 Wn. App. 559, 564, 648 P. 2d

485, review denied, 98 Wn.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
                                                                  4
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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