Please help me to identify the first-degree robbery issue in the following case In re the Personal Restraint Petition of Douglas BRATZ, Petitioner.

Court of Appeals of Washington,

Division 2.

In re the Personal Restraint Petition of Douglas BRATZ, Petitioner.

101 Wash.App. 662, 5 P.3d 759 (2000)

Aug. 4, 2000.

HOUGHTON, J.

Douglas Bratz seeks relief from personal restraint imposed following his 1987 acquittal by reason of insanity of one count of first degree robbery, contending that the facts supported only a charge of second degreerobbery. Since his acquittal, Bratz has been committed by court order to WesternState Hospital, where he may remain for a term no longer than the maximum penal sentence allowed if he had been convicted. RCW 10.77.020(3). First degree robbery carries a maximum life sentence; second degree robbery carries a 10year maximum sentence. Thus, he concludes, a reversal of the original judgment and entry of an order as to second degree robbery mandates his release from commitment pursuant to the 1987 charge. We agree and grant the petition.

FACTS

In June 1987, Douglas Bratz was found not guilty of first degree robbery by reason of insanity (NGI). The trial court that accepted Bratz's plea found:

I.

On January 21, 1987, Douglas Edward Bratz entered the Old National Bank Branch at 1145 Broadway, Tacoma, Pierce County, went up to a teller, stated,"I have nitroglycerin in my coat and I need you to give me money or I'll blow up the bank."

II.

The teller, who had observed that the defendant seemed kind of high or partially drunk, gave the defendant about $80.00, and the defendant said he didn't need that much. The defendant walked away, then returned to the teller and handed her back about half the money. The defendant left the bank and was arrested within one block of the bank, without incident.

Findings and Judgment of Acquittal of Commitment at 12.

This was the extent of the court's findings as to the circumstances of the crime. Each of the court's remaining findings pertained to Bratz's mental condition, which the court concluded justified both an acquittal by reason of insanity and an order of commitment to Western StateHospital. [FN1]

FN1. Specifically, the court found Bratz had a history of mental hospitalizations, suffered from organic brain damage, and was borderline retarded in intelligence.

The police report of the crime states:

[The teller] said she noticed [Bratz] when he first got in line. She said he acted kind of strange. When he got to the window he seemed kind of high or maybe partially drunk.

He first said,"I have nitro gylcerine [sic] in my coat and I need you to give me money or I'll have to blow up the bank." He said he owes a tavern some money and he didn't need much. [The teller] said,"[a]re you sure you wanted to do this thing?" At this time she pulled the ones, fives and tens out of the drawer and set off the alarm. She figures she handed him only about 80 dollars. He then said,"I don't need this much."

[Bratz] then walked away from the window.... [The teller] walked out around the counter and [Bratz] approached her again. He reached out and handed her about half the money and said he didn't need this much. He said he was sorry he had to do this. He reached out to shake [her] hand which [the teller] didn't acknowledge. He then left the bank.

Police Report at 23.

Bratz then walked across the street and into the Sheraton Hotel where he was arrested minutes later. No nitroglycerin was found on Bratz when searched by police. Upon being apprehended, Bratz confessed to the robbery.

***

Merits of Bratz's Petition

Contending that the facts in the record support only a charge of second degree robbery, Bratz asks this court to reverse his acquittal of first degree robbery and enter an order of acquittal of second degree robbery by reason of insanity.

Robbery is defined:

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

RCW 9A.56.190.

Robbery in the first degree is defined:

(1) A person is guilty of robbery in the first degree if in the commission of a robbery or of immediate flight therefrom, he:

(a) Is armed with a deadly weapon; or

(b) Displays what appears to be a firearm or other deadly weapon; or

(c) Inflicts bodily injury.

RCW 9A.56.200. Robbery in the second degree is robbery not constituting robbery in the first degree. RCW 9A.56.210.

Here, Bratz did not inflict bodily injury. Consequently, the only two ways to support the first degree robbery charge would be a finding that Bratz was either armed with a deadly weapon or displayed what appeared to be a deadly weapon.

Armed with a Deadly Weapon

Although the charging information alleged that Bratz was armed with nitroglycerin, a deadly weapon, nothing other than Bratz's statement to the teller supports this charge. There is no evidence in either the police report or the court's findings that Bratz ever showed nitroglycerin to anyone. Nor was the nitroglycerin ever discovered, although Bratz was apprehended less than a block away from the bank and merely a few minutes after the robbery. While it is theoretically possible that Bratz might have carefully disposed of the nitroglycerin (without exploding the highly volatile compound) in the brief interim between the robbery and his apprehension, such a conclusion stretches the bounds of reason. Bratz never possessed nitroglycerin and thus was not"armed with a deadly weapon."

Displayed what Appeared to be a Deadly Weapon

[16] First degree robbery may also be committed by displaying what appears to be a deadly weapon. Bratz argues that"displays" requires some physical manifestation beyond merely a verbal threat of harm with a deadly weapon. We agree.

The State does not dispute that no Washington case has ever found a verbal threat, unaccompanied by a physical act indicating the existence of a weapon, to constitute first degree robbery. Admittedly, as the State asserts, there is language in State v. Henderson, 34 Wash.App. 865, 86869, 664 P.2d 1291 (1983), suggesting that the displays requirement can be satisfied by a verbal threat of harm with a deadly weapon; however, read in context, the case is not so sweeping. In Henderson, the issue was whether"displayswhat appears" required that the victims actually see the weapon. There, the defendant, while demanding money from two stores, placed his hand in his coat pocket, which contained a large bulky object, and indicated to the victims that he was armed. He challenged his first degree robbery convictions on grounds that no display took place, since the victims never saw a weapon. The court rejected the argument, concluding that the defendant's"words and actions" together met the statute's"displays what appears" requirement. Henderson, 34 Wash.App. at 869, 664 P.2d 1291 (emphasis added). Even in Henderson, the defendant had to commit a menacing physical act beyond his verbal indication that he was armed in order to fall within the first degree robbery statute. [FN6]

FN6. Additionally, we note that the case which Henderson relied upon as persuasive authority, State v. Smallwood, 346 A.2d 164 (Del.1975), has likewise been so limited. Interpreting identical statutory language as is present here, the Delaware Supreme Court recently concluded:

[T]here must be more than the victim's fear of the existence of a deadly weapon. For example, the victim must see a bulge or suggestion that the defendant's clothing contained a weapon. When the victim's subjective belief is accompanied by an objective physical manifestation that the robber appears to be displaying a deadly weapon, it is sufficient evidence to establish that necessary element of Robbery in the First Degree.

(Citations omitted). Deshields v. State, 706 A.2d 502, 507 (Del.1998).

[17] In arguing that words alone can bring a defendant within the parameters of the first degree robbery statute, the State seeks an interpretation that would render"displays" tantamount to"threatens." Yet we are aware that in other instances the Legislature has provided that the mere threat of use of a deadly weapon is sufficient to sustain a first degree charge. See RCW 9A.44.040 (first degree rape). Here, the Legislature did not so provide, instead choosing to require the act of display. We find this significant, as" [i]t is well settled that where the legislature uses certain language in one instance but different, dissimilar language in another, a difference in legislative intent is presumed."Millay v. Cam, 135 Wash.2d 193, 202, 955 P.2d 791 (1998); see also State v. Coe, 109 Wash.2d 832, 845, 750 P.2d 208 (1988) (recognizing that threatened use is not included in the definition of first degree robbery); State v. Ingham, 26 Wash.App. 45, 52, 612 P.2d 801, review denied, 94 Wash.2d 1008 (1980) (distinguishing between the display and threatened use of a deadly weapon).

[18] Thus, we hold that the mere threatened use of a deadly weapon in the commission of a robbery, unaccompanied by any physical manifestation indicating a weapon, is second degree robbery, not first. To conclude otherwise would negate the presumed distinction the Legislature intended when it enacted the first and second degree robbery statutes. While providing that second degree robbery can be committed by the threatened use of immediate force, the Legislature made no mention of threats as being sufficient to constitute first degree robbery. We consequently conclude that the statutory requirement of displays is not satisfied by the mere verbal allusion to a weapon.

As it is undisputed that Bratz made nothing more than a verbal threat, we conclude that Bratz's actions did not support a first degree robbery charge. The trial court should have accepted only a NGI plea to second degree robbery.

In summary, there was not sufficient evidence to sustain a finding that Bratz committed first degree robbery. As such, Bratz's plea and the subsequent judgment are constitutionally infirm. See In re Keene, 95 Wash.2d 203, 622 P.2d 360 (1981) (vacating a forgery conviction obtained by a guilty plea where the evidence did not support a finding that the defendant's acts constituted the crime); State v. Zumwalt, 79 Wash.App. 124, 901 P.2d 319 (1995) (finding an insufficient factual basis to sustain guilty plea to first degree robbery where the weapon, as a matter of law, was not a"deadly weapon" and the information failed to include any facts underlying the conclusion that defendant was armed with a deadly weapon). The resulting prejudice to Bratz is that he is being detained and confined longer than would be statutorily allowed had the proper judgment been entered.

The petition is granted. The trial court is directed to amend its judgment to provide for a maximum term of 10 years, and Bratz shall not be confined under this cause number after the end of that term. [FN7]

FN7. Civil commitment proceedings may still be instituted against Bratz, if appropriate.

MORGAN, J., and ARMSTRONG, C.J., concur.