TACOMA, Wash. (CN) - Reducing a getaway driver's conviction of robbery to theft, a Washington appeals court emphasized that his bewigged accomplice never threatened the bank teller whom he "simply handed ... a note" and thanked for putting money in a bag.
Washington law defines robbery as the use or threatened use of force, violence or fear of injury, the ruling published Tuesday states.
"The facts of this case do not show even a slight threat," Judge Rich Melnick wrote for a divided three-member panel.
Charles Farnsworth Jr. and Donald McFarland were suffering from heroin withdrawal when they decided to steal money from a credit union in Tacoma, according to court documents. They planed to have McFarland, then 69, drive while Farnsworth, then 59, would wear a disguise and steal the money.
During their six-hour stakeout of the area, however, "McFarland grew frustrated with Farnsworth's incessant 'hem-hawing' and fidgeting with the wig," the ruling states, citing a report of the proceedings.
Resolved to do the job, and wear the wig, himself, McFarland "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,'" Melnick wrote.
McFarland's lack of a bag for said money confused the teller, but she nevertheless handed him about $300 in cash from a drawer.
"McFarland said 'thank you' and left," according to the ruling.
Police arrested the men a few blocks away. McFarland pleaded guilty to first-degree theft and agreed to testify at Farnsworth's trial. Farnsworth, a repeat felon, was convicted of first-degree robbery and sentenced as a persistent offender to life without the possibility of parole.
The appellate majority vacated the robbery conviction because they insufficient evidence that Farnsworth or McFarland planned or threatened violence.
"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," Melnick wrote.
Judge Lisa Worswick wrote in dissent that McFarland made an "implicit threat" in the note demanding money.
"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," she wrote. "I respectfully disagree."
Farnsworth's case faces resentencing for first-degree theft on remand.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.