                                                                          FILED
                                                                       AUGUST 15, 2017
                                                                 In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                           )
                                               )         No. 34109-7-111
                     Respondent,               )
                                               )
       v.                                      )
                                               )
JOHN MARK HAMIL TON,                           )         UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       KORSMO, J. -John Hamilton appeals from a conviction at bench trial for

attempted second degree robbery, arguing that the court permitted improper evidence and

applied an incorrect standard in assessing the elements of the crime. We affirm.

                                          FACTS

       Mr. Hamilton entered a convenience store that he frequented and argued with the

clerk, Ms. K.K. The incident was captured on surveillance video without audio and led

to a charge of attempted first degree robbery while armed with a deadly weapon. The

two participants related significantly different versions of the encounter at a bench trial in

the Spokane County Superior Court.

       K.K. is a native Punjabi speaker who speaks little English. She indicated that a

man came up to the counter holding a glass bottle and said he was there to do a robbery.
No. 34109-7-III
State v. Hamilton


She took off her rings and placed them on the counter, and then fell to the floor trying to

protect herself. When the man came around to her side of the counter, she got up and

fled the building, running to a next door neighbor. The neighbor testified that K.K.

frantically beat on his door and reported a robbery, which he called in to the police. The

two returned to the convenience store and saw a man, whom he identified as the

defendant, rummaging around. When the man saw the two watching him, he dropped the

lottery tickets he was holding and left the building.

       Mr. Hamilton told the court that he had previously given K.K. a $400 ring in

exchange for $20 worth of store merchandise and had come back to reclaim the ring. He

offered $40 for it. When K.K. turned the offer down, he angrily told her she was robbing

him by demanding more money. When she fell to the floor, he tried to calm her down,

but after she fled he grabbed some lottery tickets in anger, but dropped them when he

realized what he had done.

       His testimony was undermined by the recording of a telephone call he made while

in the jail. In part, that conversation recited Mr. Hamilton stating:

       Well, yeah, we don't want to hear what I'm saying, and laughs .... See
       about audio because audio would be pretty damning. It wouldn't be good.
       I don't know why they wouldn't have audio, but I hope they don't.

Report of Proceedings (RP) at 268-269.

       The court's findings report much of what the judge saw on the video. Those

findings indicate that Mr. Hamilton approached the counter holding a glass bottle by the

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State v. Hamilton


neck upside down. After setting it down on the counter, he again picked it up after the

argument began while standing directly in front of K.K. The next finding states that

K.K., "who testified that she was in fear for her safety and perplexed by the defendant's

actions, lies down on the floor behind the counter in fear and covers her head with her

hand." Clerk's Papers (CP) at 82.

       Over objection, the detective was allowed to testify to observations he made while

reviewing the defendant's actions on the video. The court permitted the testimony due to

the detective's experience and training. In response to a concern that the officer's

testimony would lead to an expression of an opinion that the defendant was guilty, the

court responded:

               Obviously as to whether someone finally commits a crime or not,
       that is in this case the Court's decision or otherwise the jury's decision, and
       goes to the ultimate facts. No one can express an opinion about guilt.

RP at 182. During cross-examination, defense counsel encouraged the detective, whom

he knew, to be "candid" about the information he was seeking when he interviewed the

defendant and asked the detective if he was seeking evidence or "looking for statements

from Mr. Hamilton that might incriminate him?" The detective responded:

      Both. I was looking for the truth. And what-His physiological
      characteristics during of the interview led me to believe that he was doing
      one of two things: Absolutely lying and hiding something from me, or
      contemplating not telling me something.

RP at 286-287. There was no objection to the response.


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State v. Hamilton


       The court recessed for two days to review the video and return a decision. The

court delivered the verdict in open court, stating the facts it found and the elements of

attempted first degree robbery that the judge found proved beyond a reasonable doubt.

The court determined that the glass bottle was not wielded as a deadly weapon and

determined that attempted first degree robbery was not proved. However, the court

concluded that all of the elements of attempted second degree robbery had been

established and found Mr. Hamilton guilty of that included offense. RP at 427-434. In

his summary of the element of threatened use of force, the court noted several times that

K.K. "feared" the defendant and his actions, or that she was "afraid." RP at 431-432.

       The court imposed a sentence at the midpoint of the standard range. Findings

required by CrR 3.5 and CrR 6.1 were promptly filed. Mr. Hamilton then timely

appealed to this court. A panel considered the case without argument.

                                       ANALYSIS

       This appeal presents two issues for our consideration. First, Mr. Hamilton

contends that the trial court's observations concerning the victim's "fear" indicated that

the court applied a subjective standard to this element. He next argues that the court

erred in permitting the detective to express opinions during testimony. We consider the

contentions in the order stated.




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No. 34109-7-III
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       Consideration of Victim's Fear

       The court's observations considering the victim's fear did not mean that the court

misapplied that evidence to the relevant law. The court's oral remarks and the written

findings both establish that the court properly applied the evidence to the law.

       The crime of robbery is committed when one "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." RCW

9A.56.190. The "force or fear must be used to obtain or retain possession of the

property," and the "degree of force is immaterial." Id. The "force or fear" element is

adjudged by the reasonable person standard. State v. Witherspoon, 180 Wn.2d 875, 884,

329 P.3d 888(2014). That standard is "whether an ordinary person in the victim's

position could reasonably infer a threat of bodily harm from the defendant's acts." Id.

       "Following a bench trial, appellate review is limited to determining whether

substantial evidence supports the findings of fact and, if so, whether the findings support

the conclusions oflaw." State v. Homan, 181 Wn.2d 102, 105-106, 330 P.3d 182 (2014)

(citing State v. Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005)). '" Substantial

evidence' is evidence sufficient to persuade a fair-minded person of the truth of the

asserted premise." Id. at 106. This court must defer to the finder of fact in resolving

conflicting evidence and credibility determinations. State v. Camarillo, 115 Wn.2d 60,

71, 794 P.2d 850 (1990). The trial court's oral remarks may be used to clarify formal
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No. 34109-7-III
State v. Hamilton


findings, but they are not themselves findings. State v. Kingman, 77 Wn.2d 5 51, 552,

463 P.2d 638 (1970). Allegedly inconsistent remarks cannot be used to impeach the

written findings. Johnson v. Whitman, 1 Wn. App. 540, 546, 463 P.2d 207 (1969).

       Nothing in the court's written findings suggest it applied a subjective standard in

assessing the fear element. Conclusion of law E states that the court found beyond a

reasonable doubt that "the taking was against the person's will by the defendant's use or

threatened use of immediate force, violence or fear of injury to that person." CP at 84.

Nothing there suggests that the conclusion was based on the subjective state of the

victim. The only relevant written finding of fact, J, states in its review of the video that

K.K. "was in fear for her safety and perplexed by the defendant's actions, lies down on

the floor behind the counter in fear and covers her head with her hand." CP at 82.

       These notations simply suggest the factual truth that the victim was in fear of the

defendant. They do not demonstrate that the court's conclusion oflaw was based on a

misunderstanding of its obligations. None of the parties argued a subjective standard to

the court and nothing in the way the case was tried suggested that the victim's actual fear

satisfied the element of the crime. Instead, the remarks all seem directed to factually

describing the offense.

       Nothing in the record suggests the court misapplied the law in its deliberations.

Accordingly, this issue is without merit.




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No. 34109-7-III
State v. Hamilton


       Detective's Testimony

       Mr. Hamilton also argues that the trial court erroneously admitted into evidence

improper opinion testimony by the detective. There was no error.

       Well understood standards govern our review of this claim. With respect to the

admission of evidence, trial court judges have great discretion and will be overturned

only for manifest abuse of discretion. State v. Luvene, 127 Wn.2d 690, 706-707, 903

P .2d 960 ( 1995). Discretion is abused where it is exercised on untenable grounds or for

untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

Additionally, in a bench trial, it is presumed that the judge followed the law and

considered evidence solely for proper purposes. E.g., State v. Adams, 91 Wn.2d 86, 93,

586 P.2d 1168 (1978); State v. Miles, 77 Wn.2d 593, 601, 464 P .2d 723 ( 1970); State v.

Bell, 59 Wn.2d 338,360,368 P.2d 177 (1962).

       However, it invades the province of the trier-of-fact for a witness to express an

opinion that a witness is lying or that a defendant is guilty. State v. Perez-Valdez, 172

Wn.2d 808, 817, 265 P.3d 853 (2011) (lying); State v. Black, 109 Wn.2d 336, 348, 745

P.2d 12 (1987) (guilt). It is the trier-of-fact's obligation to determine credibility and

decide guilt or innocence.

       Mr. Hamilton contends that the detective's testimony violated both of these

prohibitions. With respect to the answer he solicited on cross-examination with the

request that the detective be "candid" about the interview with Mr. Hamilton, the invited

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No. 34109-7-III
State v. Hamilton


error doctrine precludes review of the unchallenged answer. That doctrine prohibits a

party from contributing to an error in the trial court and then trying to take advantage of

that error on appeal. E.g., State v. Pam, 101 Wn.2d 507,511,680 P.2d 762 (1984),

overruled on other grounds by State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995); State

v. Studd, 137 Wn.2d 533, 545-549, 973 P.2d 1049 (1999). Having requested the candid

response, and apparently being satisfied at trial with that answer, he cannot now complain

that the answer constituted prejudicial error.

       Mr. Hamilton also argues that the detective was erroneously allowed to give an

indirect opinion that he was guilty by describing actions on the video that were consistent

with those of a robber. Although this argument raises legitimate concerns about the

proper scope of expert testimony, it is not persuasive in this bench trial. The trial judge

expressly told the parties that a witness could not opine on the topic of guilt and that he

would be making that determination. RP at 182. The trial judge clearly was aware of the

potential dangers of the situation and restricted the testimony to its proper reach. Under

these circumstances, there was no danger of any improper opinion testimony swaying the

verdict.

       Appellant has not overcome the presumption that the trial court considered

evidence solely for proper purposes. Accordingly, he has not established error and the

conviction is affirmed.




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      Mr. Hamilton also requests that we not award costs on appeal to the State. In light

of Mr. Hamilton's significant debt for child support and previous legal financial

obligations, we grant his request and deny costs on appeal.

      Affirmed. No costs will be awarded.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:



      Lawrence-Berrey, A.CJ.
                                     j

      Pennell, J.




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