Myron Wynn argues insufficient evidence and an erroneous jury instruction warrant reversal of his conviction for felony murder based on robbery. Finding no error, we affirm the conviction.
The murder victim was Robert Wykel. Wykel disappeared in 1996. In 2003, Wykel was ruled dead. His body has never been found. Wynn, by all accounts the last person to see Wykel, was an early suspect. He gave inconsistent statements to police and others. Nevertheless, for several years the police were unable to prove that Wynn was responsible for Wykel's disappearance.
In 2000, Wynn's sister came forward with information about a diamond Wynn had with him when he moved back to Texas in late 1997. With this lead, detectives developed proof that the diamond was from the ring Wykel always wore, and they renewed their investigation.
In 2009, the State charged Wynn with murder in the first degree, alleging he caused Wykel's death sometime in February or March 1996. An initial charge of premeditation was dropped, and the prosecution went forward on the theory that Wynn committed felony murder with the predicate felony being first or second degree robbery.
Wynn's first trial in 2010 ended with a deadlocked jury and a declaration of mistrial. In April 2011, a second jury found Wynn guilty as charged. Wynn moved for arrest of judgment under CrR 7.4, arguing there was insufficient proof he robbed or attempted to rob Wykel. The trial court denied this motion, concluding it could not be said that the jury's decision was unreasonable. The court noted that after beginning deliberations, the jury asked to hear all three of Wynn's statements to the police for a second time. Wynn's statements to the police are accurately described by the State as rife with evasive and inconsistent answers. Each time detectives confronted Wynn with new information they claimed to have discovered, he changed his version of his involvement in the events surrounding Wykel's disappearance to be consistent with the new information.
The court sentenced Wynn to 20 years, at the lower end of the standard range. Wynn appeals.
Sufficiency of the Evidence To Prove Robbery
To prove first degree felony murder, the State had to show Wynn caused Wykel's death while committing or attempting to commit robbery in the first or second degree, a felony, and in the course of, in furtherance of, or in immediate flight from the robbery. RCW 9A.32.030(1)(c).
Wykel was last seen accompanying Wynn on a visit to a remote wooded area known as Mother Nature's Acres. Wynn does not challenge the sufficiency of the evidence to prove that he caused Wykel's death. Rather, he contends that the evidence was insufficient to prove a robbery.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.
A person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will "by the use or threatened use of immediate force, violence, or fear of injury to that person." RCWA 9A.56.190. "Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking. . . . Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear." RCWA 9A.56.190. The intent to steal is an essential, nonstatutory element of the crime of robbery.
The State's trial theory was that Wynn caused Wykel's death in order to obtain or retain possession of approximately $1,000 that belonged to Wykel or of Wykel's diamond ring. The State summarizes the critical evidence as follows: "Wynn had taken a $1,000 deposit from Wykel for a car that Wynn was unable to produce, and Wykel had expressed his determination to either get the car or get his money back. Within days of Wykel's disappearance, Wynn presented his girlfriend with a diamond that bore an amazing resemblance to the diamond in the ring Wykel always wore. Wynn made numerous inconsistent statements to police, and incriminating statements to a friend."
The parties agree on the applicable legal principles. To constitute robbery, "the force must relate to the taking or retention of the property, either as force used directly in the taking or retention or as force used to prevent or overcome resistance `to the taking.'"
The most analogous case is
On appeal, the defendant in
Four dissenters acknowledged the circumstantial evidence was sufficient to prove Allen had a reason to steal, but they objected that it was insufficient to prove that Allen's attack on his mother was expressly for the purpose of stealing her cash. They said, "to disable someone and then take property as an afterthought is to commit theft, not robbery."
The majority responded in a footnote that the dissent was correct on the law but incorrect in its application of the sufficiency standard:
Wynn contends the evidence that he killed Wykel expressly for the purpose of taking his cash or diamond ring is even weaker than the evidence of motive in
The State's theory that Wynn stole $1,000 from Wykel under the pretense that it was a deposit for a car was supported by four witnesses who had been victims of Wynn's other "middleman" scams. There was evidence that Wykel was feeling "jerked around" and had grown tired of Wynn's excuses for not producing the car, a classic Ford Thunderbird Wynn had promised. Wykel had told his friend and neighbor John Ogdon, "I am going to get that car back or I am going to get my money back." The State drew the inference that Wykel called Wynn's bluff, and Wynn panicked and killed Wykel. The prosecutor's rebuttal closing argument explained the law of robbery: "Robbery; you can take $1,000 from somebody up front, you can retain it and then kill them, that's still robbery."
The evidence outlined above was strong enough to prove that Wynn killed Wykel in order to retain the cash deposit for the Thunderbird. Other evidence was sufficient to prove that Wynn killed Wykel for the opportunistic purpose of stealing the diamond ring that Wykel always wore. Wykel's daughter was able to describe the ring in detail, enabling a jeweler who specializes in recreating lost pieces to make a drawing of the ring. The drawing matched the diamond Wynn took with him to Texas and sold to a relative, from whom the police eventually obtained it.
Wynn argues that if anything, the taking of the ring "was an afterthought" after the violent encounter that ended with Wykel's death, and thus cannot serve to prove a robbery occurred.
All reasonable inferences from the evidence must be drawn in favor of the State and interpreted strongly against the defendant.
We conclude the evidence was sufficient to prove that Wynn killed Wykel either for the express purpose of retaining his ill-gotten $1,000 deposit on the nonexistent Thunderbird, or for the express purpose of taking Wykel's diamond ring, or both. Because the evidence is sufficient to prove Wynn killed Wykel to facilitate a robbery, it is also sufficient to prove the death occurred in the course of the robbery, as must be established to prove felony murder.
Instruction on Robbery
The State proposed instruction 9, the robbery instruction, and Wynn did not object. The instruction given was the pattern instruction on robbery:
Instruction 9 (emphasis added); WPIC 37.50.
Wynn now argues the last sentence is erroneous because it directs jurors to find a defendant has committed robbery as a matter of law whenever a taking and a killing are "part of the same transaction."
Jury instructions are sufficient when they allow trial counsel to argue their respective theories of the case, are not misleading, and when read as a whole, property inform jurors of the applicable law.
The language about "same transaction" in the last sentence of instruction 9 comes from a discussion of the proof requirements for robbery stated in
Wynn agrees that a robbery can occur even though the taking is not completed until after the victim's death, as long as the taking and killing are part of the same transaction. He contends, however, that the instruction does not adequately inform the jury that the killing must constitute the force used to facilitate the taking. His concern derives from
Wynn argues that by using the "same transaction" language found in
Statement of Additional Grounds
Wynn raises juror misconduct and evidentiary issues pursuant to RAP 10.10.
According to Wynn, one juror "kept bumping into" the attorneys from both sides, "once even being caught in the elevator looking into the box of evidence for the prosecutors." Also, the court learned from the bailiff that two other jurors were deliberating before the case was submitted to them. The court assigned these jurors as alternates and reinstated the first juror, who initially had been made an alternate, into the final jury.
The trial court considered these matters when they were raised in Wynn's posttrial motion. Wynn has not called our attention to any basis for concluding the court abused its discretion in dealing with the allegations of juror misconduct.
As to evidentiary issues, Wynn contends his attorneys should have let him testify on his own behalf, and he says "we argued every day on this issue." But Wynn does not say what key evidence he would have presented had he taken the stand, explain how his testimony would have made a difference, or argue his attorneys committed misconduct or were ineffective. We conclude he has not stated grounds that warrant additional review.
LAU and SCHINDLER, JJ., concurs.