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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON II
                                                             DIVISION II                                   2011i OCT 28              Ail 3: 0

STATE OF WASHINGTON,                                                                          No. 43167SdtfE'

                                                 Respondent,


             v.



 CHARLES V. FARNSWORTH, JR.,                                                     PUBLISHED IN PART OPINION


                                                 Appellant.



         MELNICK, J. —                    A jury found Charles Farnsworth guilty of first degree robbery, and the
court sentenced him as a persistent offender to life without the possibility of parole. Farnsworth

                                                       is insufficient to    support   his   conviction.'        Because there was
appeals,      arguing that the              evidence




insufficient evidence of a threat, we agree with Farnsworth that there is insufficient evidence to

support his robbery conviction. We affirm in part, vacate Farnsworth' s robbery conviction, and
remand for the trial court to sentence Farnsworth on first degree theft.

                                                                   FACTS2




             Charles Farnsworth and Donald McFarland ran out of heroin. To get money to buy more,

they robbed a branch of the Harborstone Credit Union in Tacoma. McFarland, 69 years of age at
the time,     entered        the branch wearing          a   wig   and sunglasses.    He approached a teller at the counter


and   handed her            a note   stating, " No     die [ sic] packs, no tracking devices, put the money in the bag."

Clerk'   s   Papers ( CP)            at    34.   Although the teller became confused because McFarland did not

                                   the teller handed him                     300 in          from   a   drawer.              McFarland said
actually have           a   bag,                                   about $            cash




  We address Farnsworth' s remaining arguments in the unpublished portion of this opinion,
                  his   pro se statement of additional grounds (              SAG). See RAP 10. 10.
including

2 Facts relevant to the unpublished portion of this opinion are discussed in conjunction with the
issues   presented           there.
43167 -0 -II




    thank   you" and      left. 9 Report        of   Proceedings ( RP)     at   485.    McFarland entered a truck driven by

59- year    -old   Farnsworth,        and     together   they left   the   scene.      A few blocks away, they were pulled

over and arrested.



            The State charged both Farnsworth and McFarland with first degree robbery. Farnsworth' s

case   went        to trial.       McFarland pleaded guilty to first degree theft and agreed to testify in

Farnsworth' s trial.3


            According to McFarland, he and Farnsworth had no money and had been evicted from the

trailer   they used       as a "   dope house."       13 RP at 1195. They were miserable from the effects of heroin

withdrawal.




            On the day of the instant crime, McFarland and Farnsworth spent six hours in the area near

the credit union planning to steal from it. The initial plans called for McFarland to be the driver

and Farnsworth to enter the credit union wearing a wig Farnsworth bought. But McFarland grew

frustrated       with    Farnsworth'      s   incessant " hem- hawing"          and   fidgeting      with   the wig.   13 RP at 1232.


Finally, McFarland grabbed the wig and resolved to do the job himself. McFarland put the wig on

his head and Farnsworth adjusted it for him.


            Farnsworth then wrote a note and handed it to McFarland. McFarland did not know exactly

what the note said, but he believed it contained instructions to the teller. McFarland explained that

    whenever you' re           robbing    a   bank," tellers do exactly      what      they   are   told.   14 RP at 1254.




3                                                                                                   first degree theft. The parties
    McFarland'       s   guilty    plea   included     charges   for both robbery         and

stipulated in the plea that the State would move to vacate the robbery conviction after McFarland
complied with            his   obligations      to   cooperate with   the State.       This information was not provided to
the   jury   and     McFarland testified he only pleaded to theft.                      In deciding the present case, we rely
solely      on   the facts presented at Farnsworth' trial.



                                                                      2
43167 -0 -II




          The trial court instructed the jury on both first degree robbery and the lesser included crime

of first degree theft. At the conclusion of the trial, the jury found Farnsworth guilty of first degree

robbery as an accomplice.

          The sentencing court entered findings of fact and conclusions of law determining that
Farnsworth was a persistent offender because he had previously committed two most serious

offenses.      Accordingly, the court sentenced Farnsworth to life in prison with no possibility of

parole. The sentencing court also imposed legal financial obligations on the basis of a boilerplate

finding that Farnsworth has an ability or likely future ability to pay.
          Farnsworth appeals from his judgment and sentence.

                                                      ANALYSIS


I.        SUFFICIENCY OF THE EVIDENCE


          Farnsworth argues that the evidence is insufficient to support his conviction as an

 accomplice     to first degree robbery.       We agree. Considering all of the facts presented to the jury,

 we conclude there is insufficient evidence of a direct, inherent, explicit, or implicit threat to uphold

 a conviction for robbery. There is also insufficient evidence that Farnsworth agreed to participate

 in any   crime other   than   a   theft from   a   financial institution.   Accordingly, we hold that there is

 insufficient evidence to support Farnsworth' s robbery conviction.

           When a defendant challenges the sufficiency of the evidence supporting his conviction, we

 examine the record to decide whether any rational fact finder could have found that the State

 proved each element of        the   offense   beyond    a reasonable   doubt. State v. Green, 94 Wn.2d 216,


 221, 616 P. 2d 628 ( 1980) (      citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d
 560 ( 1979)).     In a sufficiency of the evidence challenge, the defendant admits the truth of all the


                                                             3
43167 -0 -II




State' s evidence; therefore, we consider the evidence and all reasonable inferences from it in the

light   most   favorable to the State.          State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992).

Further, direct    evidence and circumstantial evidence are               equally   reliable.   State v. Delmarter, 94


Wn.2d 634, 638, 618 P. 2d 99 ( 1980).

          The term " robbery" is defined in RCW 9A.56. 190.4

          A person commits robbery when he or she 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.

 Emphasis added).


          A robbery conviction can be supported by evidence of any threat that induces an owner to
part with      his property.     State     v.   Handburgh, 119 Wn. 2d 284, 293, 830 P. 2d 641 ( 1992).            The


criminal code defines a threat to include any direct or indirect communication of intent to cause

                   to damage property,                  to physically   confine   or restrain another person.   RCW
bodily injury,                                     or




9A. 04. 110( 28)(   a) -( c).   Thus, when a rational fact finder could reasonably infer from the evidence

that a defendant' s note made an implied threat to a bank teller, the evidence is sufficient to establish

the disputed element of robbery. State v. Shcherenkov, 146 Wn. App. 619, 628 -29, 191 P. 3d 99

 2008).




 4
     The legislature   amended        RCW 9A.56. 190 in 2011 to insert            gender -neutral   language. LAWS OF

 2011,   ch.   336, § 379. The amendment does not affect this analysis.




                                                                4
43167 -0 -II




           Here, when viewing the evidence in the light most favorable to the State, McFarland and
                                                                                                 5
Farnsworth intended to              steal   money from              a   financial institution.       The original plan involved


Farnsworth putting on a disguise, entering the financial institution, and presenting the teller with

a demand      note.      Farnsworth       wrote        the    note, which said, "     No die [ sic] packs, no tracking devices,

put   the money     in the   bag." CP at 34. However, when it came time to execute the plan, McFarland

became frustrated with Farnsworth. As a result, McFarland wore the disguise, entered the bank,

and made      the demand.         The teller became frightened                   and   handed money to McFarland. He then


exited the bank and entered the vehicle driven by Farnsworth.

           The present circumstances differ from Shcherenkov, 146 Wn. App. 619, and State v.

Collinsworth, 90 Wn.              App.      546, 966 P. 2d 905 ( 1997).                 In Shcherenkov, this court found the


evidence sufficient to support convictions following four bank robberies where no force or

violence was used            146 Wn.        App.        at   622. In three of the robberies, the robber passed each bank


teller a   note   that   stated   in   part, "   This is      a   robbery." Shcherenkov, 146 Wn.          App.   at   622 -23. In the


fourth, the    robber' s     note      stated        in its entirety, " Place $ 4, 000 in     an envelope.       Do not make any

sudden movements or actions.                     I   will    be watching      you."   Shcherenkov, 146 Wn. App. at 629. The

robber also kept his hand in his pocket, causing the tellers to believe he had a gun. Shcherenkov,

146 Wn. App. at 622 -23. This court held that a rational fact finder could reasonably infer that each

of the four notes indirectly communicated a threat to use force if the teller failed to comply and

the robber insinuated he had a weapon by keeping his hand in his pocket. Shcherenkov, 146 Wn.

App. at 628 -29.



5 The fact McFarland said they were planning a " bank robbery" is irrelevant to our resolution of
the   case.    It is a colloquialism similar to people saying their house was robbed when they really
meant it was burglarized.



                                                                          5
43167 -0 -II




          Likewise, in Collinsworth, the court found the evidence sufficient to support robbery


convictions where a robber, in six separate incidents, verbally demanded cash from a bank teller,

                                                                         threat.   90 Wn.   App.   at   553 -54. In three of
without    displaying      a weapon or      articulating   an overt




the   robberies,    the   robber used a "   direct," "   demanding,"       or " serious" voice.    Collinsworth, 90 Wn.


App. at 548 -50. In two of them, the robber told the teller he " was serious" after the teller failed to
immediately comply. Collinsworth, 90 Wn. App. at 548, 550. And, two of the tellers believed the
robber was armed although they did not actually see a weapon. Collinsworth, 90 Wn. App. at 549-

50.    In all six incidents, the teller testified either to feeling personally threatened or to fearing for

the safety     of others.    Collinsworth, 90 Wn.          App.   at   548 -51.    And in four of the six incidents, the


teller gave the robber money in accordance with a bank policy of compliance with such demands.

Collinsworth, 90 Wn. App. at 548 -50.

          Here, there is insufficient evidence for a reasonable trier of fact to find the State proved

beyond a reasonable doubt that Farnsworth planned to communicate to the teller an intent to use

or    threaten to   use   immediate force,       violence, or     fear   of   injury. McFarland simply handed over a

note    instructing   the teller to "    put   the money in the        bag." CP at 34. McFarland did not insinuate

that he would take further action if the teller did not comply with the note' s instructions. Unlike

the tellers in Shcherenkov and Collinsworth who, based on the defendant' s actions, believed the

 robbers may have been armed, there is no such testimony here. And, in fact, there is no evidence
 that McFarland       made     threats   or used violence.      After receiving the money, he            said, "   Thank you."


 9 RP 485.


           Contrary to the dissent' s argument, the facts of this case do not show even a slight threat,

 either implicit or explicit. The dissent implies a threat based on the victim' s reactions and not the




                                                                  6
43167 -0 -II




defendant'     s   actions.           Unquestionably and justifiably the victim was scared; however, there is

nothing in the record, directly or circumstantially, to support a reasonable trier of fact finding
beyond a reasonable doubt that McFarland made an implied threat to use force, violence, or fear

of injury to any person.

         Another major distinguishing factor in this case from the preceding two cases is that
Farnsworth acted as an accomplice, not a principal.


                                                                             if he              is                    RCW
                            may be liable for the
         A   person                                     acts    of another           or   she        an accomplice.




9A. 08. 020( 1), (        2)(   c).   A person is an accomplice of another person in the commission of a crime

if, with knowledge that it will promote or facilitate the commission of the crime, he or she aids or

agrees to aid such other person in planning or committing it. RCW 9A.08. 020( 3).

           But, the accomplice liability statute has been construed to apply solely when the

accomplice acts with knowledge of the specific crime that is eventually charged, rather than with

knowledge          of a   different      crime or generalized   knowledge    of criminal    activity." State v. Holcomb,


180 Wn.               583, 590, 321 P. 3d 1288,         review    denied, 180 Wn.2d 1029 ( 2014); State v. Cronin,
             App.

 142 Wn.2d 568, 578 - 79, 14 P. 3d 752 ( 2000);                 State v. Roberts, 142 Wn.2d 471, 512; 14 P. 3d 713

 2000). "      And the required aid or agreement to aid the other person must be ' in planning or

committing [ the           crime]."       Holcomb, 180 Wn. App. at 590 ( quoting RCW 9A.08. 020( 3)( a)( ii)).




                                                                  7
43167 -0 -II




          To convict a person of robbery as an accomplice, the State must prove at trial, among other

elements, that the accomplice knew that the principal intended the use or threatened use of

immediate force,         violence, or   fear    of   injury   in taking   or   retaining property. 6     RCW 9A.56. 190.


          There is no evidence that Farnsworth ever agreed to aid, abet, or encourage the commission

of a crime that involved the use or threatened use of force, violence, or fear of injury. The dissent

lists evidence showing that McFarland and Farnsworth planned to steal from the bank. Dissent at
5 -6.   But the evidence does not show that the plan involved force or the threatened use of force.

We cannot say that when the plan merely calls for the principal to hand a " demand note" to a teller

of a financial institution that a robbery occurs.

          Farnsworth further argues that by implying a threat in this situation any theft from a

financial institution       would     be   a   robbery.       We agree that a robbery conviction under these facts




 6
     Contrary to the dissent' s characterization of our position, we agree that the State need not prove
the defendant       had    specific   knowledge         of    every   element.     However, as an accomplice, the State
must prove beyond a reasonable doubt that Farnsworth aided or agreed to aid McFarland in
 committing a specific crime, namely, a robbery and not a theft. In addition,

           We   adhere     to the   rule of [State v.     Davis, 101 Wn.2d 654, 682 P. 2d 883 ( 1984)]            and


            State   v.   Rice, 102 Wn.2d 120, 683 P. 2d 199 ( 1984)]: an accomplice need not have
           knowledge of each element of the principal's crime in order to be convicted under
           RCW 9A.08. 020.            General knowledge           of `the crime'      is   sufficient.   Nevertheless,

           knowledge by the accomplice that the principal intends to commit ` a crime' does
           not impose strict liability for any and all offenses that follow. Such an interpretation
           is contrary to the statute' s plain language, its legislative history, and supporting case
           law.


 Roberts, 142 Wn.2d at 513.




                                                                      8
43167 -0 -II




would   blur the line between theft      and   robbery.        We hold there is insufficient evidence to support


Farnsworth' s robbery conviction.

        Next, we consider the appropriate remedy. We may remand for sentencing on a lesser

included offense where ( 1) the trial court instructed the jury on the lesser included offense and ( 2)

the .jury necessarily considered the elements of the offense in finding the defendant guilty of the

greater offense.   State   v.   Green, 94 Wn.2d 216, 234 -35, 616 P. 2d 628 ( 1980). Here, the trial court


instructed the jury on the lesser included offense of first degree theft. The jury was instructed that

one of the elements of first degree robbery is whether the defendant intended to commit theft of

the property.      Accordingly, in finding Farnsworth guilty of first degree robbery, the jury

necessarily considered the elements of first degree theft. Therefore, we remand for sentencing on

the lesser included offense of first degree theft.


        A majority of the panel having determined that only the foregoing portion of this opinion will

be printed in the Washington Appellate Reports and that the remainder shall be filed for public record

in accordance with RCW 2. 06. 040, it is so ordered.


                                            ADDITIONAL FACTS


        McFarland explained his reasons for testifying. First, he did not like Farnsworth " because

he   was a   freeloader"   who     never contributed      to       expenses.   13 RP       at   1193.   Second, a robbery

conviction would     have been McFarland' s third          strike,      resulting in   a   life   sentence.   By testifying,

McFarland hoped to convince the State to drop some of the charges against him. If McFarland' s

testimony complied with an agreement he made with the State, he would receive an 8- to 10 -year




7 If the legislature wants to define all thefts from financial institutions as robberies, it may act
accordingly. It has not done so.


                                                               9
43167 -0 -II




sentence.      Third, McFarland was angry at Farnsworth for writing a statement for the police;

because McFarland only learned of Farnsworth' s statement through discovery, he believed
Farnsworth     was    setting him up to take the fall
                                                               alone.   Fourth, Farnsworth acted rudely towards


McFarland while they were both at Western State Hospital awaiting trial.

          To cross -examine McFarland, Farnsworth sought to admit McFarland' s statement on plea

of   guilty.   The trial court excluded the statement under ER 403, ruling that it was confusing,

misleading,     and   irrelevant.    Farnsworth also attempted to offer evidence of McFarland' s prior

convictions for theft and possession of stolen property. The trial court rejected this evidence under

ER 609.

          The State called one of its police detectives, who is also a forensic handwriting expert, to

          about whether     Farnsworth      wrote       the   note   given   to the teller.      The trial court ordered
testify

 Farnsworth to       provide a   handwriting     sample.      The detective testified that Farnsworth refused to


 provide a handwriting sample or talk to the detective, except to complain that he had not received
 documents he had requested.


          Throughout the trial, Farnsworth sat in a wooden chair while the attorneys sat in leather

 chairs with wheels.       Farnsworth objected, and courtroom security personnel explained that they

 preferred to have defendants sit in wooden chairs, to prevent them from " get[ ting] the jump and
                                                              RP ( Oct. 12, 2011)      at   9.    The trial court denied
 becom[ ing]     a   security issue for    all   of us."



 Farnsworth' s objection and explained that the chair was not conspicuous and did not signify guilt

 in the way that handcuffs          or shackles   do.    The trial court offered to give Farnsworth' s counsel a


 wooden chair, but counsel declined.




                                                                10
43167 -0 -II




I.         CUMULATIVE ERROR


           In his supplemental brief, Farnsworth argues that the cumulative effect of numerous errors


deprived him of the right to a fair trial. We disagree.

           The cumulative error doctrine warrants reversal of a defendant' s conviction where the

combined effect of several errors deprived the defendant of a fair trial, even though no error


standing alone would warrant reversal. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 ( 2000)

 citing State   v.   Coe, 101 Wn.2d 772, 789, 684 P. 2d 668 ( 1984)).                   When applying the cumulative

error doctrine, we consider errors committed by the trial court as well as instances of misconduct

by other participants, such as prosecutors or witnesses. See Greiff, 141 Wn.2d at 929 ( collecting
cases);    State v. Venegas, 155 Wn. App. 507, 520, 228 P. 3d 813 ( 2010).

           A.        Claimed Trial Errors


           Farnsworth argues that he was deprived of a fair trial by the cumulative effect of six

claimed errors: (     1) the trial   court refused     to   admit   McFarland' s     plea agreement   into   evidence; (   2)


the trial court refused Farnsworth' s request to introduce evidence of McFarland' s prior convictions

for   crimes of   dishonesty; ( 3) the prosecutor' s opening statement contained a prejudicial assertion

that   was not supported      by     the   testimony   elicited at   trial; ( 4)   McFarland testified to Farnsworth' s


rude conduct toward him when they encountered each other at Western State Hospital before the

trial; (   5) the trial court violated Farnsworth' s right to remain silent by admitting testimony of

 statements he made to a detective while refusing to give a handwriting sample; and ( 6) the trial

 court violated Farnsworth' s presumption of innocence by requiring him to sit in a hard wooden

 chair in the courtroom. We hold that only one error occurred, when the trial court refused to admit

 evidence of McFarland' s prior conviction for theft.




                                                               11
43167 -0 -II




        For the most part, Farnsworth claims that the trial court made erroneous evidentiary rulings.


We review evidentiary rulings for an abuse of discretion. State v. Darden, 145 Wn.2d 612, 619,
41   P. 3d 1189 ( 2002).        A trial court abuses its discretion when its decision is manifestly

unreasonable, based on untenable grounds, or made for untenable reasons. Darden, 145 Wn.2d at

619. A trial court necessarily abuses its discretion when basing its ruling on an error of law. State
v. Quismundo, 164 Wn.2d 499, 504, 192 P. 3d 342 ( 2008).

                 1.        Cross- Examination on McFarland' s Plea Agreement

        Farnsworth first claims that the trial court erred by excluding McFarland' s plea agreement

and thus preventing Farnsworth from meaningfully cross -examining McFarland. We disagree.
         A defendant' s constitutional right to be confronted with the witnesses against him includes

the opportunity to impeach the State' s witnesses on cross -examination. Davis v. Alaska, 415 U.S.
308, 316 -17, 94 S. Ct. 1105, 39 L. Ed. 2d 347 ( 1974).             Accordingly, a defendant is entitled to an

opportunity "   to expose to the jury the facts from which jurors, as the sole triers of fact and
                                                                 the reliability           the               Davis,
                       appropriately draw inferences relating to
               could                                                                  of         witness."
credibility,


415 U. S. at 318.


         However, the scope of cross -examination is limited by general considerations of relevance.

Darden, 145 Wn.2d        at   621 ( citing ER 401   and   403).   To be admissible, evidence must be relevant:

 it must have any tendency to make the existence of any fact in consequence more probable or less
 probable.     ER 401, 402.         But relevant evidence may be excluded if its probative value is

 substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

 the jury. ER 403.




                                                           12
43167 -0 -II




          Farnsworth sought to admit McFarland' s statement on plea of guilty, which contradicted

McFarland'      s   testimony   of   his   own     understanding    of   the terms   of   his   plea agreement.   On direct


examination, McFarland testified that he was facing a robbery charge, which would have counted

as a   third   strike   resulting in   a   life   sentence without   possibility     of release.    McFarland understood


that if he performed the terms of his plea agreement, his sentence would instead be only 8- to 10-

years. However, McFarland' s statement on plea of guilty included pleas to both robbery and theft.

          Outside the presence of the jury, the State and McFarland' s attorney concurred that

McFarland' s testimony correctly stated the end result of the plea agreement, but not its mechanics.

In light of the explanation of the plea agreement, the trial court excluded McFarland' s statement


on plea of guilty agreement under ER 401 and 403, ruling that it was confusing, misleading, and

irrelevant.


          Contrary to Farnsworth' s claim, the jury was fully informed that McFarland needed to

perform his obligations by testifying against Farnsworth in order to receive an 8- to 10 -year

sentence.      Thus, the jury was aware of facts from which it could infer that Farnsworth was biased

and not credible. See Davis, 415 U. S. at 318. The trial court' s exclusion of McFarland' s statement


on plea of guilty did not prevent Farnsworth from meaningfully cross -examining Farnsworth.

Therefore, this claim of evidentiary error fails.




                                                               13
43167 -0 -II




                      2.        Evidence ofMcFarland' s Prior Crimes ofDishonesty

             Farnsworth next argues that the trial court erred by excluding evidence that McFarland had

previously been convicted of two crimes of dishonesty: theft and possession of stolen property.

We agree only as to McFarland' s theft conviction.

             Under ER 609, evidence that a witness previously committed a crime of dishonesty can be

admissible for impeachment purposes. State v. Jones, 101 Wn.2d 113, 117, 677 P. 3d 131 ( 1984),

overruled on other grounds              by   State   v.   Brown, 111 Wn.2d 124, 761 P. 2d 588 ( 1988).            In general,


evidence of a prior conviction is admissible if (1) the crime was punishable by more than one year

in prison and the court determines that its probative value outweighs the prejudice to the party

against whom the evidence is offered or (2) the crime involved dishonesty or false statement. ER

609( a).


                                a.          Theft Conviction


             Farnsworth offered evidence                  of McFarland' s 2005 misdemeanor theft conviction,


punishable       by   not more       than   one year.      The trial court interpreted ER 609( a) to mean that prior -


conviction evidence is admissible only if the conviction was punishable by more than one year;

thus,   it   rejected      the evidence     even   though theft      was a crime of       dishonesty.   But the trial court' s


interpretation        was     clear   error.    Evidence        of   a    prior   crime   of   dishonesty   is " automatically


admissible" whether or not it was punishable by more than one year. Jones, 101 Wn.2d at 117.




                                                                     14
43167 -0 -I1




                                b.        Convictions for Possession ofStolen Property

        Farnsworth also offered evidence that McFarland had been convicted in 1987, 1988, and

1989   of   felony   possession of stolen          property.   The trial court refused this evidence because more


than 10 years had elapsed since the end of McFarland' s term of confinement for those crimes. The

trial court did not err.


        ER 609( a)'        s   general rule of      admissibility is   subject   to   a   time limit.   Under ER 609( b),


evidence of a prior conviction is not admissible when 10 years have elapsed since the date of the

conviction     or    the   witness' s     release   from    confinement,   whichever          is later — "unless the court


determines, in the interests of justice, that the probative value of the conviction supported by

specific facts and circumstances substantially outweighs its prejudicial effect."

        Farnsworth argues that the 10 -year time period should have been tolled from 1990 to 2003,

the period when McFarland was confined for a number of offenses including possession of stolen

property and kidnapping. We disagree.

        When a witness had been convicted of multiple crimes, the 10 -year time limit is judged

separately for       each      offense.    State    v.   Russell, 104 Wn.   App.          422, 432, 16 P. 3d 664 ( 2001).


Farnsworth' s trial counsel conceded that more than 10 years had elapsed between the time

McFarland finished serving his time for the possession of stolen property offenses and the time of

Farnsworth' s trial. Therefore, McFarland' s possession of stolen property convictions were outside


ER 609( b)' s 10 -year time limit. The trial court did not err by refusing to admit them.

            Farnsworth further argues that the trial court erred by failing to determine whether the

probative value of McFarland' s convictions substantially outweighed their prejudicial effect. But

ER 609( b) requires the trial court to make that determination only if it admits the evidence in the



                                                                15
43167 -041




interests     of   justice.       Because the trial court excluded the evidence as outside the time limit,

Farnsworth' s argument fails.

                        3.          Prosecutor 's Opening Statement

           Next, Farnsworth claims that the prosecutor improperly asserted during opening argument

that the evidence would show Farnsworth had used a wig and sunglasses in two prior robberies he

committed.          Farnsworth          claims    the   assertion was    improper because ( 1)        the trial court erred by

ruling before the trial that such evidence would be admissible and ( 2) the State failed to elicit

evidence supporting it. We disagree.

             First, the      pretrial   ruling   was not erroneous.      Under ER 404( b), evidence of prior acts is not


admissible         to        show     that   a   person    acted    in   conformity      with   his    character.    State   v.


Everybodytalksabout, 145 Wn.2d 456, 466, 39 P. 3d 294 ( 2002). However, evidence of prior acts


may be       admissible         for   other purposes.      ER 404( b); State v. Foxhoven, 161 Wn.2d 168, 175, 163


P. 3d 786 ( 2007).            ER 404( b) blocks the State from suggesting that the defendant is guilty because

he is "               type person,"
           a criminal -                          but it does not deprive the State of relevant evidence necessary to

establish an element of its case. Foxhoven, 161 Wn.2d at 175.


             Before admitting evidence of a prior act, the trial court must ( 1) find by a preponderance

of   the     evidence        that the    prior   act occurred, (   2) identify the purpose for which the evidence is

offered, (3) determine whether the evidence is relevant to prove an element of the charged offense,

and (   4)    weigh     the    probative value of        the   evidence against   its   prejudicial effect.   State v. Thang,

 145 Wn.2d 630, 642, 41 P. 3d 1159 ( 2002).                      Here the trial court ( 1) found by a preponderance of

the evidence that Farnsworth committed two prior robberies while wearing a wig and sunglasses,


 2) determined that the evidence was offered to show Farnsworth' s knowledge of McFarland' s




                                                                    16
43167 -0 -II




intentions     when     entering the   credit union, (    3) found that Farnsworth' s knowledge was relevant to


the issue of whether he was McFarland' s accomplice, and (4) determined that, because Farnsworth

denied knowing that McFarland was going to rob the credit union, the evidence was highly

probative of Farnsworth' s knowledge, to a degree that outweighed the prejudicial effect of

suggesting that Farnsworth " is          a   bad guy. ", 4 RP at 160. Thus, the trial court allowed the State to


offer evidence of Farnsworth' s two prior robberies.


             In challenging this ruling, Farnsworth argues that the probative value was minimal and the

prejudicial effect was great. But Farnsworth does not explain how the trial court' s ruling was an

abuse of its discretion. Darden, 145 Wn.2d at 619. Therefore, the ruling was not error.

             Second, the prosecutor did not improperly mention the two prior robberies during the

State'   s   opening.       A prosecutor' s opening statement may anticipate what the evidence will show,

so long as the prosecutor has a good faith belief that such evidence will be produced at trial. State

v.   Campbell, 103 Wn.2d 1,            15 - 16, 691 P. 2d 929 ( 1984).         The defendant bears the burden of


showing that the prosecutor acted in bad faith. Campbell, 103 Wn.2d at 16. Because Farnsworth

never claimed that the prosecutor acted in bad faith, this argument fails.

                       4.       Farnsworth' s Rude Conduct


             Farnsworth next argues that the trial court violated ER 404( b) by allowing McFarland to

testify about Farnsworth' s rude conduct towards him while they both were held at Western State

Hospital awaiting trial.             During    the   encounter,      Farnsworth " flipped [ McFarland] the bird ";


removed        his   own pants and " grabbed      his   private parts "; said, '   Suck on these you son of a bitch ";


and called      McFarland       a " stool pigeon."      15 RP at 1430. We reject Farnsworth' s argument.




                                                                17
43167 -0 -II




          Here, the trial court did not violate ER 404( b) because it did not admit dvidence of

Farnsworth' s rude conduct to show that Farnsworth acted in conformity with his character.

Foxhoven, 161 Wn.2d        at   175.   Instead, the trial court admitted this evidence because it was

probative of    McFarland'   s motives   for testifying   against   Farnsworth. Farnsworth claims that the


State " overstated" the probative value of the evidence for this purpose, but he fails to explain how

the trial court' s ruling was an abuse of discretion. This argument fails.
                  5.     Farnsworth' s Right to Remain Silent


          Farnsworth further claims that his constitutional right to remain silent was violated by the

admission of statements he made to a detective while refusing to comply with a court order to

provide a handwriting exemplar. We disagree.

          Farnsworth concedes that evidence of a defendant' s refusal to comply with a court order

to   obtain   information may be   admissible.   Schmerber v. California, 384 U.S. 757, 763 -64, 86 S.


Ct. 1826, 16 L. Ed. 2d 908 ( 1966).           But he argues that the detective improperly testified to

Farnsworth' s statements that went beyond the mere act of refusal. According to Farnsworth, these

additional statements were prejudicial because they portrayed Farnsworth as " uncooperative and

troublesome."      Supp. Br. of Appellant at 27.

          But as the State asserts, Farnsworth did not object below to the detective' s testimony on

this ground. Therefore, Farnsworth cannot predicate a claim of error on this ground. ER 103( a)..

 Moreover, Farnsworth fails to explain how his right to remain silent was violated. This argument

 fails.




                                                          18
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                     6.           Presumption ofInnocence

           Lastly, Farnsworth claims that the trial court destroyed the presumption of innocence
because    during the trial        Farnsworth      sat   in " a hard   wooden chair,"        while the attorneys sat in "padded


black leather      chairs with wheels."            Supp. Br. of Appellant at 28. We disagree.

           A     court    violates    the   presumption          of    innocence if        a    criminal        defendant lacks " the


appearance,       dignity,    and self respect
                                       -       of a         free   and   innocent   man."           State v. Finch, 137 Wn.2d 792,


844, 975 P. 2d 967 ( 1999).            In the jury' s presence, it may be improper to " single out a defendant as
                                                                Finch, 137 Wn.2d                    845.   Because a wooden chair
    particularly dangerous           or            person."                                    at
a                                         guilty


does not identify a dangerous or guilty person, this argument.fails.
           B.        The Cumulative Error Doctrine Does Not Warrant Reversal Here

           Cumulative error warrants reversal of a conviction when the defendant was denied a fair

trial.   Greiff, 141 Wn.2d at 929. A defendant was denied a fair trial if, considering the trial' s full
scope,     the    combined        effect of   the   errors    materially        affected     the trial'    s    outcome.   See State v.


Russell, 125 Wn. 2d 24, 94, 882 P. 2d 747 ( 1994).                       Thus a defendant is more likely to be prejudiced

     the                                                    the case     against   the defendant           is   weak.   United States v.
by         effect of cumulative errors where




Frederick, 78 F. 3d 1370, 1381 ( 9th Cir. 1996).                      But the cumulative error doctrine does not warrant


reversal when a           trial   has few   errors with      little   or no    impact   on   the     outcome.      State v. Weber, 159


 Wn.2d 252, 279, 149 P. 3d 646 ( 2006).


           As explained above, the trial here included only one error: the exclusion of evidence that

 McFarland had been               convicted of misdemeanor             theft   under ER 609( a). Farnsworth does not argue


 that this error, standing alone, deprived him of a fair trial or materially affected the trial' s outcome.

 Thus, his cumulative error argument fails.




                                                                       19
43167 -0 -II




            Moreover, the lone         error was      harmless.       On direct examination, McFarland admitted that


he engaged in "hustling" to support his heroin addiction. 13 RP at 1204 -05. McFarland elaborated

that he did "[     w] hat   they   call `   boosting,' shoplifting, busting meat, stuff like this. And stole things;

sold them. Different things, you know. It was anything that you could do to where we could come

up    with enough      money to     get a [ heroin]      fix to   get well."   13 RP at 1205. McFarland further testified


that   he had previously been               convicted of     first degree      burglary   and   first degree robbery.   Given


McFarland' s admitted stealing and convictions, evidence of his theft conviction would have been

merely cumulative on the issue of McFarland' s character for truthfulness.
II.         COMPARABILITY OF FOREIGN CONVICTION TO A MOST SERIOUS OFFENSE

            Farnsworth      next challenges        his    sentence as a persistent offender.           Because we vacate his


first degree robbery conviction and first degree theft is not a most serious offense under the

persistent offender act, Farnsworth is no longer subject to sentencing as a persistent offender.

RCW 9. 94A. 030( 32); RCW 9A. 56. 030( 2).                        Therefore, we do not reach this issue.


III.         LEGAL FINANCIAL OBLIGATIONS


             In his pro se statement of additional grounds, Farnsworth relies on State v. Bertrand, 165

Wn.        App.   393, 267 P. 3d 511,        review   denied, 175 Wn.2d 1014 ( 2012), to argue the record fails to


support the trial court' s boilerplate finding of his ability to pay his legal financial obligations.

Because he did not object in the trial court, Farnsworth failed to preserve this argument for review.8




 8
      In   addition,   Farnsworth       claims     that the trial       court' s   boilerplate   finding " violates his equal
 protection rights      because he is disabled             and unable      to pay."   SAG   at   13.   But Farnsworth cites no

 authority to support his equal protection claim. Therefore we do not consider it. Cowiche Canyon
 Conservancy v. Bosley, 118 Wn.2d 801, 828 P. 2d 549 ( 1992).

                                                                      20
43167 -0 -II




          We recently decided that, under RAP 2. 5( a), a defendant is not entitled to challenge for the

first time on appeal the imposition of legal financial obligations on the basis of a boilerplate

finding. State v. Blazina, 174 Wn. App. 906, 911, 301 P. 3d 492, review granted, 178 Wn.2d 1010
 2013).    We follow our decision in Blazina and decline to consider Farnsworth' s argument.

          We affirm in part, vacate Farnsworth' s robbery conviction, and remand for the trial court

to sentence Farnsworth on first degree theft.




                                                                 Melnick, J.   J

I concur:




                                                    21
43167 -0 -II




            WORSWICK, J. (   dissenting   in   part) —   The majority holds that, as a matter of law, a person

does not commit a robbery when he obtains money by entering a bank wearing a disguise and

handing a bank teller a note demanding the unconditional surrender of money to which he has no

conceivable claim. I respectfully disagree.

            I would hold that sufficient evidence supports Charles Farnsworth' s robbery conviction.

Because I would affirm this conviction, I would also reach Farnsworth' s challenge to his sentence

as    a persistent    offender.   But I agree with the majority as to all other issues decided in the

unpublished portion of its opinion.


            The majority states the correct rules governing our review of Farnsworth' s sufficiency of

the   evidence claim.      We must decide whether any rational trier of fact could have found that the

State proved each element of robbery beyond a reasonable doubt. State v. Green, 94 Wn.2d 216,

221 -22, 616 P. 2d 628 ( 1980).      By making this claim, Farnsworth has admitted the truth of all the

State' s evidence, and we must draw all reasonable inferences in the light most favorable to the

State. State     v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). Circumstantial evidence and


direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980).

            However, the majority misapplies these rules in deciding that there was insufficient proof

of (   1)   a threat communicated by Donald McFarland and ( 2) Farnsworth' s complicity, which

requires     his knowledge that his    actions would promote or        facilitate McFarland'   s   robbery.   In my

opinion, a rational trier of fact could conclude beyond a reasonable doubt that the State proved

both issues.




                                                            22
43167 -0 -II




A.       Threat


         Before examining the evidence of McFarland' s threat, it is necessary to address the

            s concern    that the      elements of      robbery     could   be interpreted too   broadly. The majority
majority'


asserts that " a robbery conviction under these facts would blur the line between theft and robbery.

Majority at 8 - 9.

         A recitation of the elements of theft and robbery shows that this concern is unfounded. A

defendant commits theft when he wrongfully takes property from another person with intent to

deprive the    person of       the property.          RCW 9A.56. 020( 1)(       a).   In contrast, a defendant commits


robbery when he unlawfully takes property from another person against the person' s will "by the
                                                                            fear of injury."   Former RCW 9A.56. 190
use or   threatened      use   of immediate force,           violence, or




 1975) (   emphasis added).



           Thus   when   any threat—"            no matter   how   slight " —induces a person to part with his property,

                                    State        Handburgh, 119 Wn.2d 284, 293, 830 P. 2d 641 ( 1992).           Former
a   robbery has    occurred.                v.




RCW 9A. 04. 110( 27)( a)        (   2007) defines a threat to include any direct or indirect communication of

intent to   cause    bodily injury          to the   person   threatened or to any other       person.   As the majority


recognizes, a threat may be implied or explicit. State v. Shcherenkov, 146 Wn. App. 619, 628 -29,
 191 P. 3d 99 ( 2008).


           Because McFarland did not make an explicit threat, the issue here is whether McFarland

 obtained money from the teller by making an implied threat to use force, violence, or fear of injury.
 I agree with the majority that the evidence is sufficient to establish this element of robbery when

    1) it shows a defendant gave a note to a bank teller and (2) a rational trier of fact could reasonably

 infer that the note implied a threat. Shcherenkov, 146 Wn. App. at 628 -29.



                                                                    23
43167 -0 -II




           I disagree, however, with the majority' s conclusion that it is unreasonable for any rational

trier offact to      infer   a    threat here.      McFarland        gave     the teller a        note   stating, " No die packs, no


tracking devices,      put   the money in the             bag."     Clerk'   s    Papers    at   34.   This is a naked demand for


money,      unsupported      by        any    claim of right.       I agree with Division One of this court that it is


reasonable for a rational trier of fact to infer that such a demand is " fraught with the implicit threat

to   use   force."   State   v.    Collinsworth, 90 Wn.             App.    546, 553, 966 P. 2d 905 ( 1997) (             per curiam).




Indeed, without the implicit threat to use force, it is difficult to imagine why the teller would

comply with the note' s demand for money.

            Nonetheless, Farnsworth asserts that the teller gave McFarland money simply because it

was   the   credit union' s       policy to comply         with   any   note' s     demand - not because McFarland made a


threat.     But the teller'       s   testimony     contradicts      this    assertion.          The teller complied because she


 didn' t want anybody else to get harmed, and [ she] didn' t know what he was capable of doing."

9 Report of Proceedings ( RP) at 486. Moreover, because the policy allowed a robber to " get out

as quick as possible so               nobody     else can get       harmed,"        the policy itself recognized that a naked

demand for the bank' s money conveys a threat of violence. 9 RP at 486.

            Further, under the circumstances in which McFarland delivered the note, it is all the more

reasonable      to infer that McFarland              communicated a               threat.   As soon as McFarland entered the


credit union, the teller became suspicious because he was wearing a wig and dark sunglasses while

 looking      around   acting         all   fidgety." 9   RP   at   477. When McFarland approached the teller at her


counter,     he kept his     arms crossed and             leaned    over    the   counter "[      p] ast [ her]   comfort zone."   9 RP


at 480. Viewed in the light most favorable to the State, testimony that a man in disguise made the




                                                                     24
43167 -0 -II




teller physically uncomfortable bolsters the reasonable inference that the man communicated an
implied threat of violence.9

        In addition, the majority' s analysis is flawed in one important respect when it distinguishes

this case from Shcherenkov, 146 Wn. App. 619, and Collinsworth, 90 Wn. App. 546. The majority

considers only the direct evidence, without drawing any inferences from it. But we are required
to draw all reasonable inferences in the State' s favor and to consider direct and circumstantial

evidence equally reliable. Salinas, 119 Wn.2d at 201; Delmarter, 94 Wn.2d at 638.
        Lastly, I note that the majority' s analysis of the evidence in this case omits substantive

analysis regarding the conclusions that a rational trier of fact could form. This omission matters
because the sufficiency of the evidence inquiry is limited to protecting the constitutional standard

of proof   beyond    a reasonable    doubt.     Green, 94 Wn.2d        at   221.   Thus we are not to weigh the


evidence   to decide   what we    believe it   proved;   instead   we must    decide   whether "'   any rational trier

                 have found the   essential elements of     the    crime    beyond   a reasonable    doubt. "' Green,
offact could




 94 Wn.2d at 221 -22 ( quoting Jackson v. Virginia, 443 U. S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d
 560 ( 1979)).    Because I would hold that a rational trier of fact could find beyond a reasonable

 doubt that McFarland communicated an implied threat, I would affirm Farnsworth' s robbery

 conviction.




 9 The majority acknowledges that the teller was " justifiably" scared. Majority at 7.

                                                           25
43167 -0 -II




B.        Complicity

          The majority further decides that the evidence is insufficient to show that Farnsworth was

an accomplice            to McFarland' s robbery.           As an initial matter, I note that neither party raised or

briefed this issue. In addition, I disagree with the majority' s analysis.

          A defendant is liable as an accomplice for another person' s crime if the defendant ( 1)

     ajids or agrees to aid such other person in planning or committing it" and ( 2) has " knowledge

that it    will     promote      or facilitate the        commission          of   the crime."    RCW 9A.08. 020( 3)( a)( ii).


Complicity requires merely general knowledge of the principal' s crime, not actual knowledge of
                                                                                                                           1°
each specific element.              State     v.   Roberts, 142 Wn.2d 471, 513, 14 P. 3d 713 ( 2000).                             But the



majority ignores this rule in concluding that the evidence is insufficient to show that Farnsworth
knew McFarland would use or threaten to use force, violence, or fear of injury.

           I disagree      with   the majority' s       assertion   that "[   t] he fact McFarland said they were planning

                                                                       the             Majority        5   n. 5.   We are required to
a ` bank     robbery' is irrelevant to             our resolution of          case."              at




examine       the   evidence      in the   record when we consider             the sufficiency    of   the     evidence.        Green, 94


Wn.2d        at   221.    And McFarland' s testimony about the plans he made with Farnsworth is clearly

relevant      to Farnsworth'       s general        knowledge   of    McFarland'       s crime.   See Roberts, 142 Wn.2d at


513.




 10 The majority reads Roberts as standing for an entirely different proposition: that the State must
show the accomplice' s knowledge of each element of the principal' s crime. But Roberts expressly
rejected this proposition; instead, it adhered to the rules of State v. Davis, 101 Wn.2d 654, 682
P. 2d 883 ( 1984),         and   State   v.   Rice, 102 Wn. 2d 120, 683 P. 2d 199 ( 1984).                  Roberts, 142 Wn.2d at
 511 - 13.




                                                                     26
43167 -0 -II




         The   evidence       here is    more    than     sufficient    to   prove   Farnsworth'     s    complicity.   McFarland



testified that he had been struggling for months to pay for heroin and living expenses, while

Farnsworth      consumed         heroin        without     paying for it.         According to McFarland, Farnsworth

explained     his   inability   to pay   by    repeatedly saying, "          Well, if I had a gun, I' d do a robbery, I' d do

a   robbery, I' d do      a   robbery."        13 RP      at   1201.    Although McFarland believed Farnsworth was


                                         bought                                      A]11 I          is   a gun."   13 RP at 1237.
merely    boasting, Farnsworth                       a   wig   and remarked, "[               need




          Eventually McFarland became so desperate that he began listening to Farnsworth and
agreed   to   help   him " do the robbery."              13 RP at 1207. Together, Farnsworth and McFarland cased


two banks before choosing the one to rob.

          The initial plan called for McFarland to drive and for Farnsworth to commit the robbery

    b] ecause it    was   his deal. He     was    the    one always     talking   about   the robbery."        13 RP at 1207. But


on the day of the robbery, McFarland' s brother forbade him from driving because he was too
drunk; Farnsworth drove instead.

          At one point, McFarland and Farnsworth .planned to use a bicycle to flee the bank.

 Farnsworth tested the bicycle by riding it out of McFarland' s sight, and when Farnsworth returned

 the bike     was    broken.      Although McFarland understood that Farnsworth would rob the bank,

 Farnsworth repeatedly backed                                                     for         going       into the bank.   Because
                                               out   by    making      excuses          not




 Farnsworth         was " an expert       at   using     people,"      McFarland suspected that Farnsworth may have

 intentionally broken the bicycle and backed out so that McFarland would become frustrated and
 perform the robbery. himself. 13 RP at 1230.




                                                                       27
43167 -0 -II




        Fed up       with   Farnsworth'   s"   hem   and    hawing," McFarland grabbed the wig, put it on, and

decided to     rob   the bank himself.         13 RP   at   1233.   Farnsworth helped by adjusting the wig on

McFarland' s head before McFarland entered the bank to rob it.

        Viewed in the light most favorable to the State, this evidence shows that ( 1) Farnsworth

aided McFarland in planning and committing the bank robbery and ( 2) Farnsworth had general

knowledge that his actions would promote or facilitate this crime. See RCW 9A.08. 020( 3)( a)( ii);

Roberts, 142 Wn.2d at 513. Therefore the evidence is sufficient to prove Farnsworth' s complicity.

        Even if the State were required to prove that Farnsworth had specific knowledge of each

element of McFarland' s robbery, as the majority suggests, I would find the evidence here
sufficient. Farnsworth wrote the note that McFarland ultimately handed to the teller. As explained

above, I would hold that a rational trier of fact could reasonably infer that the note communicated

an implied threat. I would also hold that a rational trier of fact could conclude beyond a reasonable

doubt that Farnsworth knew that writing the note would promote or facilitate the implied threat

that McFarland communicated by delivering the note to the teller.

         I would affirm Farnsworth' s robbery conviction and reach the sentencing issues.




                                                               28
