                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                      November 14, 2018




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                              No. 50243-7-II

                               Respondent,

        v.

 RODERIC ANDRE BARRINGTON,                                   UNPUBLISHED OPINION

                               Appellant.

       JOHANSON, J. — Roderic Barrington appeals his conviction and sentence for first degree

robbery with a firearm enhancement. He argues that the sentencing court erred in not performing

a comparability analysis on one of his prior out-of-state convictions. He also argues that the

sentencing court abused its discretion by failing to consider mitigating circumstances allegedly

justifying an exceptional sentence below the standard range. In his statement of additional grounds

(SAG), Barrington challenges the sufficiency of the evidence supporting his robbery conviction.

       We hold that Barrington waived the issue of whether his prior out-of-state conviction is

comparable to a Washington offense by stipulating to its comparability. We further hold that the

sentencing court did not abuse its discretion because it considered, but rejected, Barrington’s

argument that mitigating circumstances justified an exceptional sentence downward. Finally, we

reject Barrington’s assertion that insufficient evidence supports his robbery conviction.

Accordingly, we affirm.
No. 50243-7-II


                                               FACTS

                              A. STIPULATION TO CRIMINAL HISTORY

        A jury found Barrington guilty of first degree robbery and a firearm enhancement. Before

sentencing, Barrington filed a stipulation to his criminal history and offender score. He stipulated

to the inclusion of five prior felony convictions in the calculation of his offender score for the first

degree robbery conviction. As relevant here, Barrington stipulated to the inclusion of an out-of-

state class B felony conviction for burglary and an out-of-state class C felony conviction for grand

larceny.   He specifically “stipulate[d] that any out-of-state convictions listed below [were]

equivalent to Washington State felony convictions of the class indicated, per RCW 9.94A.360(3)[

and RCW] 9.94A.525.” Clerk’s Papers (CP) at 81. Barrington also stipulated to an offender score

of 5 with a standard range sentence of 57 to 75 months for the first degree robbery conviction and

an additional 60-month sentence for the firearm enhancement, with a total standard range sentence

of 117 to 135 months.

                             B. MOTION FOR EXCEPTIONAL SENTENCE

        Barrington filed a motion for an exceptional sentence below the standard range based on

mitigating circumstances. In the motion, he acknowledged that his criminal history supported an

offender score of 5 with a standard range sentence of 57 to 75 months, along with an additional

60-month sentence on the firearm enhancement. However, Barrington argued that the following

mitigating circumstances justified an exceptional sentence downward: (1) the standard range

sentence for first degree robbery with a firearm enhancement was “far in excess of any sentence

[Barrington] ha[d] served before,” (2) Barrington’s “victim was an . . . ‘aggressor or provoker of

the incident,’” and (3) Barrington had “no apparent predisposition” to commit first degree robbery


                                                   2
No. 50243-7-II


but “was induced by others to participate.” CP at 74-75 (quoting RCW 9.94A.535(a)). Barrington

asked for an exceptional sentence of 12 months for the first degree robbery conviction, with an

additional 60 months for the firearm enhancement.

                             C. SENTENCING HEARING AND SENTENCE

       At the sentencing hearing, the State filed certified copies of the prior out-of-state

convictions with the sentencing court. Barrington’s counsel stated that “the certified copies

establish the prior convictions adequately,” and the offender score of five points was accurate. 7

Verbatim Report of Proceedings (VRP) at 442. The State recommended a 117-month total

sentence, the low end of the standard range sentence.          Barrington’s counsel reiterated the

mitigating circumstances set forth in the motion for an exceptional sentence below the standard

range and asked for an exceptional sentence downward of 72 months total. The State expressed

that it was “open to the [sentencing c]ourt considering [an] exceptional sentence downward”

“given the limited criminal history” and noted that considerations of “fairness . . . could allow for

. . . an exceptional sentence.” 7 VRP at 457-58.

       In considering what sentence to impose, the sentencing court listened to the parties’

arguments and noted Barrington’s criminal history, the fact that he used “a sawed off shotgun with

a pistol grip” at an apartment complex during the robbery, that Barrington “seem[ed] like a very

decent guy,” and that the court has “a duty to protect society.” 7 VRP at 460-61. The sentencing

court orally ruled on the motion for an exceptional sentence downward, stating,

       This Legislature has spoken. I know I have some discretion here. I don’t think it
       would be appropriate to exercise any lower than the standard range. 57 months,
       plus 60 for the sentence enhancement for the weapon. . . .
                ....
                . . . 57 [months is] [t]he lowest range I can give him if I still follow the
       statute.

                                                   3
No. 50243-7-II



7 VRP at 461-62 (emphasis added).

       The judgment and sentence included the two out-of-state felony convictions in

Barrington’s criminal history and set forth an offender score of 5. The sentencing court imposed

a 57-month sentence at the low end of the standard range for the first degree robbery conviction,

along with a 60-month sentence for the firearm enhancement, for a total standard range sentence

of 117 months. This appeal followed.

                                            ANALYSIS

                     I. COMPARABILITY OF THE OUT-OF-STATE CONVICTION

       Barrington argues that the sentencing court erred when it scored his out-of-state conviction

for grand larceny as a felony conviction for purposes of calculating his offender score.1 Barrington

contends that the sentencing court should have performed a comparability analysis of that offense

to relevant Washington offenses and scored the out-of-state grand larceny conviction as a

misdemeanor. Barrington waived the comparability issue.

       Generally, a sentence within the standard range set forth in the Sentencing Reform Act of

1981 (SRA), chapter 9.94A RCW, is not subject to appeal. State v. Osman, 157 Wn.2d 474, 481,

139 P.3d 334 (2006). Additionally, a defendant who stipulates to his criminal history and offender

score generally waives the right to challenge the facts to which he stipulated. See State v. Harris,

148 Wn. App. 22, 29, 197 P.3d 1206 (2008). “[W]aiver can be found where the alleged error

involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial




1
 Barrington concedes that the charging document for the out-of-state statutory burglary conviction
shows that the sentencing court did not err when it included that conviction in his offender score.

                                                 4
No. 50243-7-II


court discretion.” In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002).

However, “waiver does not apply where the alleged sentencing error is a legal error leading to an

excessive sentence.” Goodwin, 146 Wn.2d at 874.

       Out-of-state convictions can be included in a defendant’s offender score only if they are

comparable to a Washington offense.2 State v. Arndt, 179 Wn. App. 373, 378, 320 P.3d 104

(2014). Whether an out-of-state conviction is comparable to a Washington offense generally

involves a factual determination. Arndt, 179 Wn. App. at 378. Therefore, “a defendant who

stipulates that his out-of-state conviction is equivalent to a Washington offense has waived a later

challenge to the use of that conviction in calculating his offender score.” State v. Hickman, 116

Wn. App. 902, 907, 68 P.3d 1156 (2003).

       Barrington explicitly “stipulate[d] that any out-of-state convictions listed [were] equivalent

to Washington State felony convictions of the class indicated, per RCW 9.94A.360(3)[ and RCW]

9.94A.525.” CP at 81. The written stipulation listed Barrington’s out-of-state class C felony

conviction for grand larceny. Therefore, we hold that because Barrington stipulated that his out-

of-state conviction is equivalent to a Washington offense, he has waived his challenge to the use

of that conviction in calculating his offender score.




2
 The State concedes that Virginia’s grand larceny offense is broader than Washington’s definition
of felony theft. Barrington simply states that a legal comparability analysis is “precluded.” Br. of
Appellant at 6. “[I]f the foreign statute is broader than the Washington definition of the particular
crime, ‘the sentencing court may look at the defendant’s conduct . . . to determine whether the
conduct would have violated the comparable Washington statute.’” State v. Morely, 134 Wn.2d
588, 606, 852 P.2d 167 (1998) (quoting State v. Mutch, 87 Wn. App. 433, 437, 942 P.2d 1018
(1997)).
                                                   5
No. 50243-7-II


   II. EXCEPTIONAL SENTENCE BELOW THE STANDARD RANGE – MITIGATING CIRCUMSTANCES

       Barrington argues that the sentencing court’s ruling does not reflect whether it considered

mitigating factors supporting an exceptional sentence below the standard range. Barrington

contends that the mitigating factors include provocation by the victim and his limited criminal

history. We disagree.

       Generally, a sentencing court must impose a sentence within the standard range set by the

SRA. RCW 9.94A.585(1); State v. Graham, 181 Wn.2d 878, 882, 337 P.3d 319 (2014). However,

RCW 9.94A.535(1) provides that a sentencing court may depart from the standard sentence range

for substantial and compelling reasons and it may “impose an exceptional sentence below the

standard range if it finds that mitigating circumstances are established by a preponderance of the

evidence.” “While no defendant is entitled to an exceptional sentence below the standard range,

every defendant is entitled to ask the trial court to consider such a sentence and to have the

alternative actually considered.” State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005)

(emphasis added).

       We review a sentencing court’s decision to deny an exceptional sentence for abuse of

discretion. State v. McGill, 112 Wn. App. 95, 100, 47 P.3d 173 (2002). A court abuses its

discretion when it denies an exceptional sentence based on an incorrect belief that it is not

authorized to grant the sentence. See State v. O’Dell, 183 Wn.2d 680, 696-97, 358 P.3d 359

(2015). In contrast, where a trial court considers the facts of the case and concludes that there is

no factual or legal basis to impose an exceptional downward sentence, it has exercised discretion,

and the trial court’s ruling is not appealable. McGill, 112 Wn. App. at 100.




                                                 6
No. 50243-7-II


       Here, the sentencing court heard argument about and discussed the mitigating

circumstances in Barrington’s motion for an exceptional sentence at the sentencing hearing. The

sentencing court explicitly recognized that it had “some discretion” in determining what sentence

to impose. 7 VRP at 461. However, the sentencing court determined that it would not “be

appropriate to exercise any lower than the standard range.” 7 VRP at 461. The sentencing court

then imposed “the lowest [standard] range” sentence it could give Barrington. 7 VRP at 462.

       The sentencing court’s acknowledgment that it had discretion to impose a sentence below

the standard range shows that it did not deny Barrington’s motion on a mistaken belief that it

lacked authority to grant the motion. Instead, the sentencing court considered the mitigating

circumstances, but denied Barrington’s motion because it determined that an exceptional sentence

downward was not appropriate.           Because the sentencing court considered mitigating

circumstances, we hold that it did not abuse its discretion in imposing a standard range sentence.

                         STATEMENT OF ADDITIONAL GROUNDS

                                             FACTS

                                        I. BACKGROUND

       One night in May 2016, a little after midnight, René Ramirez Acosta looked outside his

apartment’s bedroom window and saw two people in his vehicle. Ramirez Acosta ran out of his

apartment and screamed at the two people as they ran away. He saw a man that he later identified

as Barrington sitting in a vehicle between 10 and 20 feet from his vehicle. Ramirez Acosta

approached the vehicle and asked Barrington what he was doing. Barrington pointed a shotgun at

Ramirez Acosta and told him to get back inside. The two people that had run off returned and

pointed guns at Ramirez Acosta. Ramirez Acosta went inside the apartment. When Ramirez


                                                7
No. 50243-7-II


Acosta went back outside, he saw that his stereo, speaker, and pictures of him and his girlfriend

were missing from inside his vehicle.

       After the police contacted Barrington, he admitted that he was with two people and that he

pointed a shotgun into the air on the night in question and said, “‘Get the f*** away from us.’” 3

VRP at 251.

       The State charged Barrington with first degree robbery.

                                             II. TRIAL

       At trial, the State called the following relevant witnesses: detectives, police officers,

Ramirez Acosta, and Ramirez Acosta’s girlfriend to testify. Exhibits admitted at trial included a

shotgun, bullet, a shaved key, stolen property, and photo montages.

       Ramirez Acosta testified to the above facts. He stated that on the night in question, he was

sleeping when his girlfriend woke him up because his vehicle had a “kill switch” and she heard

his vehicle turn on. 2 VRP at 137. Ramirez Acosta looked out of his bedroom window and saw

two people in his vehicle. He testified that at this time his trunk was closed. He went outside and

saw another vehicle about 10 feet from his vehicle. He screamed “Hey!” and the two people ran

away. 2 VRP at 140. He then approached the person in the other vehicle who was in the

passenger’s seat and said, “Hey, what are you doing?” 2 VRP at 140. The person in the vehicle

reached for a shotgun and pointed it at him and said, “[G]et back inside,” as well as a lot of

profanity. 2 VRP at 142. Ramirez Acosta said his girlfriend and father came outside around this

time. He testified that the two other people then came back and pointed guns at him.

       Ramirez Acosta, his girlfriend, and father went back inside. His girlfriend called the police.

Ramirez Acosta testified that he went back outside about a minute and 30 seconds later and saw


                                                 8
No. 50243-7-II


that his stereo was missing, all the doors of the vehicle were open, and his trunk was open with the

speaker missing. He also saw a bullet on the ground. An officer testified that there was a bullet

and a shaved key on the ground when they arrived at the scene. Ramirez Acosta was shown exhibit

12, the shotgun, and he testified that this could have been the same shotgun that the man in the

vehicle pointed at him. Ramirez Acosta also testified that he picked Barrington’s picture in a photo

montage and said that he was 90 percent certain he was the one inside the vehicle that pointed the

gun at him. Ramirez Acosta identified Barrington at trial.

       Detective Robert Baker testified that he interviewed Barrington as part of his investigation

and Barrington told him that he and two other people drove to Tacoma to get drugs and had stopped

at a Tacoma apartment complex. Barrington told Detective Baker that he was approached when

he was in the vehicle. The detective testified that Barrington told him that he pointed a shotgun in

the air and said, “Get the f*** away from us.” 2 VRP at 109. Detective Baker said that Barrington

told him that “they returned to the vehicle” and “they all fled the area.” 3 VRP at 252. Detective

Timothy Griffith was with Detective Baker during this interview and both detectives said that

Barrington told them that following this incident, Barrington and the two other people went to

Federal Way and that they were in a gold Acura.

       Police officers testified that Federal Way Police had found a gold Acura the same day as

the incident, and the officers brought it to a holding facility at the Tacoma Police Department.

After the vehicle was brought to a holding facility, the officers and Detective Baker testified that

they found a shotgun, stereo, and speaker box inside the vehicle. At trial, Ramirez Acosta

identified the stereo and speaker as his.




                                                 9
No. 50243-7-II


       Barrington did not testify or call witnesses at trial. A jury found Barrington guilty of first

degree robbery and a firearm enhancement.

                                           ANALYSIS

                                     I. SUFFICIENT EVIDENCE

       In his SAG, Barrington argues that the State presented insufficient evidence to prove

beyond a reasonable doubt that he committed first degree robbery. Barrington’s argument fails.

                                      A. PRINCIPLES OF LAW

       We review challenges to the sufficiency of the evidence de novo. State v. Rich, 184 Wn.2d

897, 903, 365 P.3d 746 (2016). The State has the burden of proving all of the essential elements

of the crime “beyond a reasonable doubt.” Rich, 184 Wn.2d at 903. Evidence is sufficient if,

when viewed “‘in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime [were proven] beyond a reasonable doubt.’” Rich, 184

Wn.2d at 903 (quoting State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980)). When

challenging the evidence as insufficient, the defendant “admits the truth of all of the State’s

evidence” and all “reasonable inferences” that arise therefrom. State v. Cardenas-Flores, 189

Wn.2d 243, 265-66, 401 P.3d 19 (2017). “Circumstantial and direct evidence are . . . equally

reliable.” Cardenas-Flores, 189 Wn.2d at 266.

       A person 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. Such taking constitutes robbery whenever
       it appears that, although the taking was fully completed without the knowledge of


                                                 10
No. 50243-7-II


          the person from whom taken, such knowledge was prevented by the use of force or
          fear.

RCW 9A.56.190. Division One of this court has held that a taking is from a victim’s person or

presence when the victim “‘by force or fear, had been removed from or prevented from

approaching the place from which the asportation of the personality occurred.’” State v. Stearns,

61 Wn. App. 224, 229, 810 P.2d 41 (1991) (quoting State v. Blewitt, 37 Wn. App. 397, 398-99,

680 P.2d 457 (1984)); see also State v. Nam, 136 Wn. App. 698, 705, 150 P.3d 617 (2007) (holding

that “[p]ersonal property is within a victim’s presence when it is ‘within [the victim’s] reach,

inspection, observation or control, that [she] could, if not overcome with violence or prevented by

fear, retain [her] possession of it’”) (alterations in original) (quoting State v. Manchester, 57 Wn.

App. 765, 768-69, 790 P.2d 217 (1990)).

          Under RCW 9A.56.200(1), a person is guilty of first degree robbery if he is armed with a

deadly weapon, displays what appears to be a firearm or other deadly weapon, or inflicts bodily

injury.

          The State relied on a theory of accomplice liability. A person may be guilty of the crime

as an accomplice if he “[s]olicits, commands, encourages, or requests” another person to commit

a crime or “[a]ids or agrees to aid such person in planning or committing it” with knowledge that

he is promoting or facilitating the commission of the crime. RCW 9A.08.020(2)(a)(i), (ii).

“General knowledge of ‘the crime’ is sufficient.” State v. Roberts, 142 Wn.2d 471, 513, 14 P.3d

713 (2000). In order to establish that a person is an accomplice, the State must prove more than

mere presence and knowledge of the criminal activity of another. State v. Everybodytalksabout,

145 Wn.2d 456, 472, 39 P.3d 294 (2002). But the State does not need to prove “‘that the principal

and accomplice share the same mental state.’” State v. McDaniel, 155 Wn. App. 829, 864, 230

                                                 11
No. 50243-7-II


P.3d 245 (2010) (internal quotation marks omitted) (quoting State v. Hoffman, 116 Wn.2d 51, 104,

804 P.2d 577 (1991)).

                      B. SUFFICIENT EVIDENCE OF FIRST DEGREE ROBBERY

       Barrington argues that there is insufficient evidence that he committed first degree robbery

or acted as an accomplice to first degree robbery. This argument fails.

       First, Barrington specifically argues that based on the victim testimony, he was not

connected to the robbery, he did not know about the robbery, and he did not help the two others

because he “was not near or around the alleged robbery and was never involved in [the] altercation

but was approached by the victims” and pointed the gun at the victim to protect himself. SAG at

2.

       Here, Ramirez Acosta saw two people inside his vehicle, but the trunk of his vehicle was

closed. He went outside and when he confronted the two individuals inside his car, they ran away.

Barrington sat in the passenger’s side of a vehicle between 10 and 20 feet away from Ramirez

Acosta’s vehicle. Ramirez Acosta approached Barrington sitting in the vehicle and confronted

him by saying, “[W]hat are you doing?” 2 VRP at 140. Barrington then pointed a shotgun at him

and told Ramirez Acosta to get back inside. The State presented evidence that the two people that

Ramirez Acosta initially saw in his vehicle came back and pointed guns at Ramirez Acosta.

Ramirez Acosta then went back inside.

       His girlfriend called the police and about a minute and a half later Ramirez Acosta went

back outside and he noticed his stereo, speakers, and photos were gone and the trunk of his vehicle

was open. Additionally, a bullet and shaved key were found on the scene. This evidence is

supported by the detectives’ testimony that Barrington told the detectives that he went to the


                                                12
No. 50243-7-II


apartments in Tacoma with two others, that he was approached when he was in a vehicle, and that

he pointed a shotgun in the air and said, “Get the f*** away from us.” 2 VRP at 109. Furthermore,

Barrington told the detectives that he and the two others were in a gold Acura, and later officers

found a gold Acura with a shotgun, stereo, and speakers inside of it. At trial, Ramirez Acosta

identified the stereo and speaker as his.

        This evidence leads to reasonable inferences that Barrington had knowledge that the two

others were stealing from Ramirez Acosta’s car and that Barrington assisted in the robbery by

forcing Ramirez Acosta to retreat to his apartment so that the others could continue robbing the

victim’s vehicle. This happened in the presence of the victim because the victim was prevented

from protecting his property due to force. Stearns, 61 Wn. App. at 229. Furthermore, credibility

determinations and persuasiveness of the evidence are issues decided by the jury and not this court.

Cardenas-Flores, 189 Wn.2d at 266. Additionally, we review “the evidence in the light most

favorable to the [State].” Rich, 184 Wn.2d at 903. Thus, Barrington’s argument that he was not

connected to the robbery and did not know about the robbery fails.

        Second, Barrington also argues that intent is a necessary element of robbery and that the

testimony shows that Barrington did not have the requisite intent. The crime of robbery “includes

the nonstatutory element of specific intent to steal, which . . . is the equivalent to specific intent to

deprive the victim of his or her property permanently.” State v. Ralph, 175 Wn. App. 814, 82-25,

308 P.3d 729 (2013). However, for accomplice liability a person just needs “[g]eneral knowledge

of ‘the crime’” and does not need “knowledge of each element of the principal’s crime.” Roberts,

142 Wn.2d at 513. Based on the circumstantial evidence that the State presented at trial as

summarized above, Barrington aided the two others with knowledge that his actions facilitated the


                                                   13
No. 50243-7-II


crime of robbery. A reasonable trier of fact could also infer from the evidence that Barrington

acted as a principal and threatened Ramirez Acosta by pointing his gun at Ramirez Acosta with

the intent to deprive Ramirez Acosta of his property.

        Viewing the evidence in the light most favorable to the State, a rational trier of fact could

have found that Barrington was either an accomplice or principal in taking personal property in

the presence of another against that person’s will by the threatened use of immediate force and

while displaying and armed with a deadly weapon. Therefore, Barrington’s claim that insufficient

evidence supports his first degree robbery conviction fails.

        We affirm.

        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.



                                                      JOHANSON, J.
 We concur:



 WORSWICK, P.J.




 BJORGEN, J.




                                                 14
