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871Wash.PLANO v. CITY OF RENTON Cite as 14 P.3d 871 (Wash.App. Div. 1 2000)
only the elements of second degree robbery, i.e., that Mr. Barker unlawfully took personal property in the victim’s presence against her will by the use or threatened use of force or fear of injury, but that no weapon was dis- played. In order to obtain a conviction for first degree robbery, the State had to prove that Mr. Barker displayed what appeared to be a firearm or other deadly weapon during the commission of the crime. I would hold that the State did so under the facts of this case.
Although argued otherwise in the briefing, a mere verbal statement that one is armed with a weapon does not constitute the display of a deadly weapon. Used in a statutory context, the term display requires some physical manifestation beyond a mere verbal threat of harm with a deadly weapon. In re Personal Restraint of Bratz, 101 Wash.App. 662, 674–76, 5 P.3d 759 (2000), review denied (Wash. Dec. 5, 2000 (No. 70137–7). Accord- ingly, the State had to present evidence that the alleged robber committed a menacing physical act beyond his verbal indication that he was armed, in order to fall within the parameter of the first degree robbery stat- ute. The only evidence presented at trial, with regard to the description of the actual robbery, affirmatively showed that a weapon was displayed during the alleged robbery.
Although the victim testified that she did not see a gun, the alleged robber told her he had a gun and said he would shoot her if she did not cooperate. She also testified that something hard was shoved into her back as she tried to open the cash register. Officer Perry Skipton, a 20–year veteran of the Yak- ima Police Department, was the first law enforcement official on the scene of the re- ported robbery. He began to interview the victim within minutes of the crime. S 909He testified that the victim was frightened, up- set, and trembling as he interviewed her. She told him that a man came into the store, said he had a gun, and said he wanted the money. She told the officer that she did not see the gun but while she took the money out of the cash register she could feel something pointing into her back. Another of the State’s witnesses, Raul Abundiz, testified that Mr. Barker admitted that he had com-
mitted the shoe store robbery. Mr. Abundiz also told the jury that Mr. Barker said that he did not really have a weapon during the robbery, but admitted that he put his finger under his shirt so the clerk would believe that he had a gun. When, as here, 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. Bratz, 101 Wash.App. at 674, 5 P.3d 759. As a result, the State failed to satisfy the factual prong of the Fernandez–Medina test regarding the elements of second degree robbery. For this reason it was an abuse of the trial court’s discretion to instruct the jury on the lesser degree offense.
Because this issue is dispositive to the outcome of the appeal, I would reverse and remand for a new trial without reaching the merits of Mr. Barker’s other assignments of error. It is important to note that due to double jeopardy concerns, Mr. Barker cannot be retried on charges greater than the charge for which he was convicted here. However, in a strange twist of circumstances, he may be retried on the offense for which he was already convicted, as long as the reversal was not for insufficiency of the evidence. State v. Brown, 127 Wash.2d 749, 757, 903 P.2d 459 (1995). Since I would reverse and remand based on the erroneous jury instruc- tion, this principle is not violated.
,
103 Wash.App. 910
S 910Linda M. PLANO and Drewe Plano, wife and husband, Appellants,
v.
CITY OF RENTON, a Washington Municipality, Respondent.
No. 45578–8–I.
Court of Appeals of Washington, Division 1.
Dec. 26, 2000.
Boat owner sued city for injuries suf- fered when she slipped and fell on ramp
872 Wash. 14 PACIFIC REPORTER, 3d SERIES
leading to moorage dock at city park. The Superior Court, King County, Jay V. White, J., granted summary judgment to city. Boat owner appealed. The Court of Appeals, Beck- er, A.C.J., held that city charged moorage fee and thus city was not entitled to immunity under recreational use statute.
Reversed.
1. Appeal and Error O893(1) Review of an order of summary judg-
ment is de novo.
2. Negligence O1193 The statutory grant of recreational use
immunity to landowners is to be strictly con- strued. West’s RCWA 4.24.210(1).
3. Negligence O1194, 1195 The recreational use statute provides
immunity for landowners, including public landowners, for unintentional injuries to users of lands or water areas that are made available to the public for recreational use without charging a fee of any kind for the use of such lands or water areas. West’s RCWA 4.24.210.
4. Statutes O190 Statutory language needs no interpreta-
tion when it is unambiguous.
5. Negligence O1195 A landowner can charge a fee for public
use of a portion of its recreational land with- out losing recreational use immunity for pub- lic use of the remainder. West’s RCWA 4.24.210.
6. Negligence O1195 To be entitled to immunity under the
recreational use statute, a landowner must only show that it charges no fee for using the land or water area where the injury oc- curred. West’s RCWA 4.24.210(1).
7. Municipal Corporations O849 By imposition of moorage fee, city
charged fee for use of the particular area where boat owner’s injury occurred, on ramp leading to dock, and thus city was not enti- tled to immunity under recreational use stat- ute; metal ramp where owner fell was a
necessary and integral part of the moorage, in that the reason why ramps and connecting gangways existed was to provide access to floating dock, a fee-generating portion of the park. West’s RCWA 4.24.210(1).
8. Municipal Corporations O849 City was not immune from liability for
boat owner’s injury when she slipped and fell on metal ramp leading to floating dock as a matter of public policy because boat owner was illegally using moorage dock at time of her injury in that she had not paid moorage fees; relevance of owner’s failure to pay fee on day of accident would be determined ac- cording to ordinary tort principles, but had no bearing on issue of immunity.
Scott Allen McDonald, Max Jeffrey Mey- ers, Scott McDonald & Associates, Kirkland, for Appellants.
Zanetta Lehua Fontes, Warren, Kellogg, Barber, Dean & Fontes, Renton, for Respon- dent.
BECKER, A.C.J.
Appellant Linda Plano sued the City of Renton for injuries she suffered when she slipped and fell on a ramp leading to a moor- age dock at a Renton park. Renton claimed immunity based on the recreational use S 911statute, RCW 4.24.210. The trial court granted summary judgment in favor of Ren- ton and dismissed Plano’s case. We reverse because Renton charges moorage fees. The statutory immunity does not apply if the landowner charges ‘‘a fee of any kind’’ for the use of the land or water area where the injury occurs. RCW 4.24.210(1).
The City of Renton owns and maintains Gene Coulon Memorial Beach Park on the southeast shore of Lake Washington. The park has paths and walkways, picnic areas, fishing piers, a swimming area, and a play- ground. It also has a boat launch area and a floating dock for boat moorage. The floating moorage dock is accessible to the rest of the park by means of two gangways that connect the dock to a fixed pier.
At 7 p.m. on Sunday, June 4th, 1995, Linda Plano drove to the park to pick up her boat
873Wash.PLANO v. CITY OF RENTON Cite as 14 P.3d 871 (Wash.App. Div. 1 2000)
from the moorage dock. She walked along the fixed pier, and then down the gangway that connects the pier to the floating moor- age dock. There are handrails on the gang- way. The handrails end at the bottom where a metal ramp attaches the gangway to the floating dock. Plano slipped and fell on the wet metal ramp. As a result of the fall she suffered a compound fracture of her right leg.
Plano sued the City of Renton, as well as several construction and engineering firms, on the theory that the ramp was not built to the requirements of the Uniform Building Code for slope and handrails. Plano and Renton filed cross motions for summary judgment to determine whether Renton, as the owner of recreational land, was immune from liability under the recreational use stat- ute. The court granted Renton’s motion and Plano appeals.
[1, 2] Review of an order of summary judgment is de novo. Simpson Tacoma Kraft Co. v. Department of Ecology, 119 Wash.2d 640, 646, 835 P.2d 1030 (1992). Here, the facts are undisputed and the legal issue is the effect of the statutory phrase, ‘‘without charging a fee of any kind there- for’’. RCW 4.24.210(1). The statutory grant of immunity is to be strictly construed. Mat- thews v. Elk Pioneer Days, 64 Wash.SApp.912 433, 437–38, 824 P.2d 541, review denied, 119 Wash.2d 1011, 833 P.2d 386 (1992) (outdoor recreation does not include festivals).
[3] The recreational use statute, RCW 4.24.210, provides immunity for landowners, including public landowners, for unintention- al injuries to users of lands or water areas that are made available to the public for recreational use without charging a fee of any kind for the use of such lands or water areas:
(1) Except as otherwise provided in sub- section (3) of this section,[1] any public or private landowners or others in lawful pos- session and control of any lands whether designated resource, rural, or urban, or water areas or channels and lands adjacent to such areas or channels, who allow mem- bers of the public to use them for the
purposes of outdoor recreation, which term includes, but is not limited to, the cutting, gathering, and removing of firewood by private persons for their personal use without purchasing the firewood from the landowner, hunting, fishing, camping, pic- nicking, swimming, hiking, bicycling, skateboarding or other nonmotorized wheel-based activities, hanggliding, para- gliding, the riding of horses or other ani- mals, clam digging, pleasure driving of off- road vehicles, snowmobiles, and other vehi- cles, boating, nature study, winter or water sports, viewing or enjoying historical, ar- chaeological, scenic, or scientific sites, without charging a fee of any kind there- for, shall not be liable for unintentional injuries to such users.
RCW 4.24.210. Renton does not charge a fee to enter the
park. Renton does not charge a fee to use most of the park’s facilities. But Renton does charge a fee for overnight moorage. Boaters must pay $10 per night to moor between 6 p.m. and 8 a.m. The purchase of an annual boat launch permit entitles a boat- er to one free night of moorage. Moorage is free between the hours of 8 a.m. and 6 p.m. for up to four hours. The moorage fee drop box is on the fixed pier. Posted with the drop box are the moorage regulations. A sign states that the City of Renton enforces the moorage regulations, and S 913violators are subject to fine and impound.
Plano first moored her boat overnight at the park on Friday, June 2, 1995. She did not pay a moorage fee because she had pur- chased an annual boat launch permit which allowed her a free night of moorage. On the next night, June 3, Plano again moored over- night at the park. She paid the $10 fee by dropping the fee in the drop box. On Sun- day, June 4, she left her boat moored at the dock during the day and was returning to pick it up after 6 p.m. when the accident occurred. She had not paid a moorage fee for June 4th.
[4] Renton claims immunity from Plano’s suit on the basis that Plano did not pay a fee for moorage on the day the injury occurred.
1. Subsection (3) of RCW 4.24.210 exempts a fee charged to cut and remove firewood.
874 Wash. 14 PACIFIC REPORTER, 3d SERIES
Some jurisdictions, enforcing differently worded statutes, have taken that approach. For instance, the Kentucky Court of Appeals concluded that a municipality was immune from suit for a young diver’s injury because although the community center charged fees at certain times of the day, the diver came during the time of day when children were admitted free, and had not paid a fee to use the pool. Midwestern, Inc. v. Northern Ken- tucky Community Center, 736 S.W.2d 348, 350 (Ky.Ct.App.1987). The question under Washington’s statute, however, is not wheth- er Plano actually paid a fee for using the moorage, or whether Renton actually charged a fee to the person injured. The question is whether Renton charges a ‘‘fee of any kind’’ for using the moorage. This statu- tory language needs no interpretation as it is unambiguous. See Rozner v. Bellevue, 116 Wash.2d 342, 347, 804 P.2d 24 (1991).
Our analysis on this point is consistent with Gaeta v. Seattle City Light, 54 Wash. App. 603, 774 P.2d 1255, review denied, 113 Wash.2d 1020, 781 P.2d 1322 (1989). In Gae- ta, the plaintiff attempted to avoid the statu- tory immunity by showing that his purpose in coming on the land was commercial, not recreational. The court held that the appli- cation of the statutory immunity depends on the perspective of the landowner as to the use of the land, not on the purpose of the user. Gaeta, 54 Wash.App. at 608–09, 774 P.2d 1255. From Renton’s S 914perspective, the moorage is available for members of the public to use for purposes of outdoor recre- ation. Under the statute, immunity is avail- able only if Renton does not charge a fee of any kind for such use.
Renton also claims immunity on the theory that there is no fee charged to people who walk on the dock or the gangway without mooring a boat, or who moor for less than four hours during the day. Again, precedent for such an approach can be found in other jurisdictions whose statutes are somewhat different from Washington’s. See, e.g., Flohr v. Pennsylvania Power & Light Co., 821 F.Supp. 301, 305 (E.D.Pa.1993) (although the plaintiffs had paid a camping fee, the land- owner was immune because the plaintiffs could have used the area where the accident
occurred without charge if they had come only for the day). But Washington’s statute does not say that a landowner can have immunity so long as the lands or water areas are available free of charge some of the time. The statute simply states that there is no immunity if the owner charges a ‘‘fee of any kind’’.
The Ninth Circuit, applying Washington’s statute, has held that a landowner may charge a fee for something other than use of the land, and still enjoy recreational use im- munity. See Jones v. United States, 693 F.2d 1299 (9th Cir.1982). The plaintiff in Jones injured herself in the Hurricane Ridge area of Olympic National Park while she was snow sledding on an inner tube she had rented from the park for a fee. The inner tube rental fee was not a fee charged for the entrance upon or the use of the land on which the injury occurred. Jones, 693 F.2d at 1303.
[5] A landowner can also charge a fee for public use of a portion of its recreational land without losing immunity for public use of the remainder. A Florida case illustrates the point. Kleer v. United States, 761 F.2d 1492 (11th Cir.1985). The plaintiff was injured while diving from a bridge in an undeveloped portion of the Ocala National Forest. There was no fee for using this area. The court found immunity despite the fact that the government charged fees in developed areas of the National Forest. Kleer, 761 F.2d at 1495.
[6] S 915Washington’s statute, which like Florida’s is intended to encourage owners to make land available for public use, see RCW 4.24.200, is consistent with the approach in Kleer. A landowner does not need to devote an entire contiguous parcel of land to public use without charge in order to have immuni- ty. See Kleer, 761 F.2d at 1495. A landown- er must only show that it charges no fee for using the land or water area where the inju- ry occurred.
[7] Using this analysis, the question is whether, by the imposition of the moorage fee, Renton charges a fee for the use of the particular area where Plano’s injury oc- curred-the ramp leading to the dock. The
875Wash.STATE v. GALLAHER Cite as 14 P.3d 875 (Wash.App. Div. 3 2000)
trial court concluded it did not, stating that ‘‘no fee of any kind was charged for use of the subject ramp or gangway’’. But the metal ramp where Plano fell is a necessary and integral part of the moorage. The reason why the two ramps and the connecting gang- ways exist is to provide access to the floating dock, a fee-generating portion of the park. An overnight moorage patron cannot even pay the required moorage fee without walk- ing up one of the ramps, including the one on which Plano fell. These facts establish that the ramp where the injury occurred is in the recreational area for use of which Renton charges a fee.
[8] Apart from the statute, Renton also argues it should be immune from liability as a matter of public policy because Plano was illegally using the moorage dock at the time of her injury. This argument is not well supported.2 Plano’s complaint against Ren- ton is a premises liability case. See Cultee v. City of Tacoma, 95 Wash.App. 505, 524, 977 P.2d 15, review denied, 139 Wash.2d 1005, 989 P.2d 1136 (1999). The relevance of Pla- no’s failure to pay a fee on the day of the accident, if any, will be determined according to ordinary tort principles. It has no bearing on the issue of immunity.
In summary, Plano’s injury occurred while she was using S 916the moorage. Renton charges a fee for use of the moorage and for that reason is not immune from Plano’s suit. Accordingly, we reverse the order of sum- mary judgment and direct entry of summary judgment on the issue of immunity in favor of Plano. Plano may proceed against Renton on her complaint of negligence.
Reversed.
AGID, C.J., and KENNEDY, J., concur.
,
103 Wash.App. 842
S 842STATE of Washington, Petitioner,
v.
Robert GALLAHER, Respondent.
No. 18737–3–III.
Court of Appeals of Washington, Division 3.
Panel Four.
Dec. 26, 2000.
After defendant was convicted of permit- ting an animal to run at large and sentencing was deferred, the District Court, Okanogan County, Christopher Culp, J., dismissed case. The state appealed and the Superior Court, John Burchard, J., affirmed. On grant of discretionary review, the Court of Appeals, Kato, J., held that court could dismiss charges after defendant had complied with conditions of deferred sentence, even though defendant had been found guilty after trial.
Affirmed.
1. Sentencing and Punishment O2096
Trial court could dismiss criminal charges against defendant after defendant had complied with conditions of deferred sen- tence, even though defendant did not plead guilty but rather was found guilty after trial. West’s RCWA 3.66.067.
2. Sentencing and Punishment O379
When the court elects to defer sentenc- ing, the criminal prosecution has not ended and will not end until either the subsequent pronouncement of sentence or until the court grants an order of dismissal.
3. Sentencing and Punishment O379
The court has the authority to defer sentencing after a defendant has been con- victed of a misdemeanor. West’s RCWA 3.66.067.
2. For this argument Renton relies solely on the Court of Appeals decision in Federated American Ins. Co. v. Strong, 36 Wash.App. 256, 261, 673 P.2d 873 (1984), without recognizing that the
Supreme Court reversed the Court of Appeals decision in that case. 102 Wash.2d 665, 689 P.2d 68 (1984).
