FILED MAY 2, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 34032-5-111 ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) EDWARD LEON NELSON, ) ) Appellant. )
LAWRENCE-BERREY, J. - A jury found Edward Leon Nelson guilty of attempted
first degree robbery with a firearm enhancement and also found him guilty of attempting
to elude a pursuing police vehicle. In a bifurcated trial, the jury found Mr. Nelson not
guilty of unlawful possession of a firearm in the first degree.
Mr. Nelson appeals his conviction for attempted first degree robbery. He argues:
( 1) the to-convict instruction omitted the essential nonstatutory element that the victim
have a possessory, ownership or representative interest in the property, (2) sufficient
evidence does not support his conviction for attempted first degree robbery, (3) the
firearm enhancement should be vacated for lack of sufficient evidence and inconsistent
verdicts, and (4) the trial court erred in refusing to instruct the jury on the lesser included No. 34032-5-III State v. Nelson
offense of unlawful display of a firearm. He also raises three separate arguments in his
statement of additional grounds for review (SAG).
We conclude the trial court's to-convict instruction for attempted first degree
robbery lacked an essential element and unconstitutionally relieved the State of its burden
of proving each element beyond a reasonable doubt. But we also conclude the error was
harmless beyond a reasonable doubt. We otherwise reject Mr. Nelson's arguments and
affirm his convictions.
FACTS Background facts
Myung Meinhold was on duty at the pharmacy counter at a Rite Aid store in
Yakima, Washington, on August 15, 2014. She noticed Mr. Nelson, who continually
would go to the back of the line as customers came and went. Eventually, he came back
with a roll of paper towels and handed Ms. Meinhold a note asking for oxycodone. He
then lowered his chin and looked down at his hand. Ms. Meinhold followed his gaze and
noticed he was holding a black pistol. She testified the pistol was not pointed at her, but
was pointed "towards the roof." Report of Proceedings (RP) at 51. He said, "you're
going to get this for me or I'm going to shoot you in ten seconds." RP at 52.
2 No. 34032-5-111 State v. Nelson
Ms. Meinhold told Mr. Nelson she did not have access to the oxycodone and had
to get the pharmacist. Ms. Meinhold had the pharmacist, Thomas Newcomer, quickly
come to the counter.
Mr. Newcomer glanced at Mr. Nelson's note, and Mr. Nelson asked him for oxy-
30s, meaning 30 milligram oxycodone pills. Mr. Newcomer believed the note was some
sort of fake prescription. He did not see Mr. Nelson's gun and was not aware that Mr.
Nelson even had a gun. He began to walk toward the secured oxycodone, paused, and
decided he did not want to supply oxycodone to someone without a valid prescription. He
then told Mr. Nelson the store was out of oxycodone.
Mr. Nelson next demanded cash. Only then did Mr. Newcomer realize Mr. Nelson
intended to rob the store. Mr. Newcomer said he did not have access to cash, and said he
would call the manager. Mr. Nelson immediately fled the store with the paper towels.
The facts leading to Mr. Nelson's arrest are known to the parties and need not be
recited because they do not bear on the issues raised on appeal.
Procedural facts
By third amended information, the State charged Mr. Nelson with attempted first
degree robbery of Ms. Meinhold and/or Mr. Newcomer, attempting to elude a pursuing
police vehicle, and first degree unlawful possession of a firearm. Because the third
3 I No. 34032-5-111 State v. Nelson
charge required introducing evidence of Mr. Nelson's prior convictions, the parties
agreed to bifurcate that charge from the first two.
The State presented the evidence recited above to the jury. The State also sought
to present a videotaped interview between Mr. Nelson and law enforcement. Mr. Nelson
objected. The trial court excused the jury to hear and consider Mr. Nelson's objections.
Mr. Nelson objected to several parts of the video and argued those parts were
substantially more prejudicial than probative. After careful review of the transcript, the
parties agreed to excise certain portions of the interview so that the jury would not see the
unduly prejudicial parts of the interview. The trial court admitted the remainder of the
videotape without objection.
After the State rested, the trial court asked Mr. Nelson if he had anything to
address. Mr. Nelson responded that he did. First, Mr. Nelson moved to dismiss the
portion of the attempted first degree robbery charge that listed Mr. Newcomer as a victim.
Mr. Nelson argued there was insufficient evidence that Mr. Newcomer was threatened
with the use of force. After the State responded, the trial court granted Mr. Nelson's first
motion.
Second, Mr. Nelson moved to dismiss the portion of the attempted first degree
robbery charge that listed Ms. Meinhold as a victim. Mr. Nelson argued there was
4 No. 34032-5-111 State v. Nelson
insufficient evidence that Ms. Meinhold had access to the oxycodone. Mr. Nelson, citing
State v. Richie 1 and State v. Latham,2 also argued there was insufficient evidence Ms.
Meinhold had an ownership, representative, or possessory interest in the oxycodone. The
State responded, "That might be a good argument if he had been charged with a
completed crime, but he's been charged with the attempt. The legal and factual
impossibility is not a defense." RP at 404. Mr. Nelson responded that classifying the
crime as an attempt does not negate the State's obligation to prove that Ms. Meinhold had
a representative interest in the oxycodone. The trial court concluded that Ms. Meinhold's
status as an employee was sufficient for her to have a representative interest in the
property under Richie and denied Mr. Nelson's second motion.
The trial court directed the bailiff to bring the jury back. Once back, Mr. Nelson
rested his case.
The parties then discussed jury instructions. Mr. Nelson's proposed to-convict
instruction for attempted first degree robbery required the jury to find that Ms. Meinhold
had a possessory, ownership, or representative interest in the property sought to be taken.
The trial court, consistent with its earlier ruling, rejected that instruction.
1 191 Wn. App. 916, 365 P.3d 770 (2015). 2 35 Wn. App. 862, 670 P.2d 689 (1983).
5 No. 34032-5-III State v. Nelson
Mr. Nelson also requested the trial court to instruct the jury on a lesser included
offense, unlawful display of a firearm. The trial court rejected that instruction, too.
The trial court determined it would give the following to-convict instruction:
To convict the defendant of the crime of Attempted First Degree Robbery in Count 1, each of the following_ elements of the crime must be proved beyond a reasonable doubt: (1) That on or about August 15, 2014, the defendant did an act that was a substantial step towards unlawfully taking personal property from the person or in the presence of another, Myung B. Meinhold; (2) That Myung B. Meinhold was an employee of the owner of the property; (3) That the defendant intended to commit theft of the property; (4) That the attempt to take was against the person's will by the defendant's use or threatened use of immediate force, violence, or fear of injury to that person; (5) That force or fear was used by the defendant to obtain or retain possession of the property or to prevent or overcome resistance to the taking or to prevent knowledge of the taking; (6)(a) That in the commission of these acts or in immediate flight therefrom the defendant was armed with a deadly weapon; or (b) That in the commission of these acts or in the immediate flight therefrom the defendant displaced what appeared to be a firearm; and (7) That any of these acts occurred in the State of Washington.
Clerk's Papers (CP) at 67. Mr. Nelson objected to the instruction. He also took
exception to the trial court's failure to give his requested instructions, as discussed
previously.
6 No. 34032-5-111 State v. Nelson
The trial court also instructed the jury on the definition of a firearm so the jury
could answer the special verdict on count I-whether Mr. Nelson was armed with a
firearm when he committed attempted robbery:
For purposes of the special verdict as to Count One, the State must prove beyond a reasonable doubt that the defendant was armed with a firearm at the time of the commission of the crime of Attempted First Degree Robbery. A "firearm" is a weapon or device from which a projectile may be fired by an explosive such as gunpowder.
CP at 83.
The jury found Mr. Nelson guilty of attempted first degree robbery and, by special
verdict, found that Mr. Nelson was armed with a firearm when he committed the crime.
The jury also found Mr. Nelson guilty of attempting to elude a pursuing police vehicle.
In the bifurcated trial, the same jury acquitted Mr. Nelson of first degree unlawful
possession of a firearm. This appeal timely followed.
ANALYSIS
1. OMISSION OF ESSENTIAL ELEMENT FROM THE TO-CONVICT INSTRUCTION
Mr. Nelson argues the trial court's to-convict instruction omitted an essential
element of robbery in the first degree, and the omission unconstitutionally relieved the
State of its burden to prove an element beyond a reasonable doubt. The State responds
7 No. 34032-5-111 State v. Nelson
that the to-convict instruction was proper; but even if it was improper, any error was
harmless.
This court reviews alleged errors of law in jury instructions de novo. State v. Fehr,
185 Wn. App. 505, 514, 341 P.3d 363 (2015). A jury instruction is erroneous if it relieves
the State of its burden to prove every element of a crime. State v. DeRyke, 149 Wn.2d
906, 912, 73 P.3d 1000 (2003). "A to-convict instruction must contain all essential
elements of a crime because it serves as a yardstick by which the jury measures the
evidence to determine the defendant's guilt or innocence." Richie, 191 Wn. App. at 927.
"The fact that another instruction contains the missing essential element will not cure the
error caused by the element's absence from the to-convict instruction." Id. at 927-28.
In Richie, a Walgreens employee who had not begun her shift attempted to prevent
the defendant from leaving Walgreens without first paying for two bottles of alcohol. Id.
at 920. As the defendant passed the employee, the defendant hit the employee with one
of the bottles over her head and escaped. Id. at 920-21. He later was arrested. Id. at 921.
The State charged the defendant with first degree robbery. Id. The trial court instructed
the jury on robbery, but the to-convict instruction did not require the State to prove that
the victim had an interest in the stolen bottles of alcohol. Id. at 928. The Richie court
held that Washington's common law of robbery makes "clear that a defendant cannot be
8 No. 34032-5-III State v. Nelson
convicted of robbery unless the victim has an ownership, representative, or possessory
interest in the property taken." Id. at 924. Failure to include this essential nonstatutory
element in a robbery to-convict instruction unconstitutionally relieves the State of its
burden of proving each essential element of the crime beyond a reasonable doubt. Id. at
928. The Richie court held that the trial court erred because it did not include the
nonstatutory essential element.
Here, as in Richie, the trial court did not include the essential nonstatutory element
in the to-convict robbery instruction. The trial court therefore erred.
2. HARMLESS ERROR BEYOND A REASONABLE DOUBT
"[A]n erroneous jury instruction that omits an element of the charged offense or
misstates the law is subject to harmless error analysis." State v. Thomas, 150 Wn.2d 821,
844, 83 P.3d 970 (2004). "[A]n instruction that omits an element of the offense does not
necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence." Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827,
144 L. Ed. 2d 3 5 (1999). "The Neder test for determining the harmlessness of a
constitutional error is 'whether it appears beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.'" Thomas, 150 Wn.2d at 845
(internal quotation marks omitted).
9 No. 34032-5-111 State v. Nelson
Here, as in Richie, the State argued the employee victim had a sufficient
representative capacity over the property. "[A] person with a representative capacity
would include a bailee, agent, employee, or other representative of the owner ifhe or she
has care, custody, control, or management of the property." Richie, 191 Wn. App. at 925
(emphasis added). Because of the qualifier in the above language, an employee does not
necessarily have representative capacity over all of an employer's property.
Mr. Nelson argues there is no evidence Ms. Meinhold had care, custody, control,
or management of the property. He argues Ms. Meinhold did not have access to the
oxycodone that was locked in a safe, and Ms. Meinhold had to ask the pharmacist on duty
to get the locked oxycodone. The State responds that Ms. Meinhold is a pharmacy
technician and, as a pharmacy technician, she had the right to handle oxycodone. But the
State failed to offer any evidence that Ms. Meinhold had such a right. The State did not
ask Ms. Meinhold to discuss any of her job duties.
The State also argues Mr. Nelson was charged and convicted of attempted first
degree robbery. The trial court defined the State's burden for proving an anticipatory
offense: "A person commits the crime of Attempted First Degree Robbery when, with
intent to commit that crime, he does any act that is a substantial step toward the
commission of that crime." CP at 63. A substantial step is an act that is "strongly
10 No. 34032-5-III State v. Nelson
corroborative" of the actor's criminal purpose. State v. Luther, 157 Wn.2d 63, 78, 134
P.3d 205 (2006) (citing State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002)).
Here, Mr. Nelson, while holding a black pistol at his side, drew Ms. Meinhold's
attention to the pistol and threatened to kill her unless she gave him oxycodone in 10
seconds. This act alone is "strongly corroborative" of Mr. Nelson's criminal purpose.
Ms. Meinhold said she did not have access to the oxycodone, went to the pharmacist, and
asked him to immediately go to the counter. The pharmacist saw Mr. Nelson's note,
began to get the oxycodone, paused, and then told Mr. Nelson the store was out of the
drug. Had the pharmacist not lied to Mr. Nelson, Mr. Nelson would have obtained the
oxycodone because of his armed threat to kill Ms. Meinhold. This evidence allows a jury
to reach but one conclusion-Mr. Nelson's armed threat to kill Ms. Meinhold was a
substantial step toward committing theft of the oxycodone. We, therefore, conclude that
the trial court's instructional error was harmless beyond a reasonable doubt.
3. FIREARM ENHANCEMENT
Mr. Nelson next contends this court should vacate the firearm enhancement. He
raises two arguments. He first argues there was insufficient evidence that the gun was
operable, as required by RCW 9.41.010(9). He also argues the jury returned inconsistent
verdicts: a special verdict finding that he was armed with a firearm when he committed
11 No. 34032-5-III State v. Nelson
the crime of attempted first degree robbery; and, later, a not guilty verdict for first degree
unlawful possession of a firearm. We disagree with his arguments.
In a criminal case, the State must provide sufficient evidence to prove each
element of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307,316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). A defendant may raise a challenge to
the sufficiency of the evidence for the first time on appeal. State v. Colquitt, 133 Wn.
App. 789, 795-96, 137 P.3d 892 (2006).
a. Sufficient circumstantial evidence the gun was operable
In evaluating the sufficiency of the evidence, the court must determine whether,
when viewing the evidence in the light most favorable to the State, any rational trier of
fact could have found guilt beyond a reasonable doubt. State v. Pirtle, 127 Wn.2d 628,
643,904 P.2d 245 (1995). A claim of insufficiency admits the truth of the State's
evidence and all reasonable inferences from that evidence. State v. Kintz, 169 Wn.2d
537,551,238 P.3d 470 (2010). Reviewing courts also must defer to the trier of fact "on
issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the
evidence." Thomas, 150 Wn.2d at 874-75. This court does not reweigh the evidence and
substitute its judgment for that of the jury. State v. Green, 94 Wn.2d 216, 221, 616 P .2d
12 No. 34032-5-111 State v. Nelson
628 ( 1980). For sufficiency of evidence claims, circumstantial and direct evidence carry
equal weight. State v. Varga, 151 Wn.2d 179,201, 86 P.3d 139 (2004).
Ms. Meinhold testified the gun appeared to be real. Also, Mr. Nelson directed Ms.
Meinhold's attention to the gun he held at his side and threatened he would kill her in 10
seconds unless she gave him oxycodone. Testimony that the gun appeared real, coupled
with evidence that the defendant used the gun in committing a crime, is sufficient
circumstantial evidence to sustain a jury's finding that the gun was operable. State v.
Tasker, 193 Wn. App. 575,594,373 P.3d 310, review denied, 186 Wn.2d 1013, 380 P.3d
496 (2016). Mr. Nelson asks this court to overrule Tasker, but fails to explain why the
type of circumstantial evidence required by Tasker is insufficient. We decline to overrule
Tasker.
b. Inconsistent verdicts
"Where the jury's verdict is supported by sufficient evidence from which it could
rationally find the defendant guilty beyond a reasonable doubt, we will not reverse on
grounds that the guilty verdict is inconsistent with an acquittal on another count." State v.
Ng, 110 Wn.2d 32, 48, 750 P.2d 632 (1988). As discussed above, sufficient evidence
supports the firearm enhancement. We, therefore, will not reverse the inconsistent
verdict.
13 No. 34032-5-111 State v. Nelson
4. LESSER INCLUDED OFFENSE
Mr. Nelson next contends the trial court erred when it denied his request to instruct
the jury on the lesser included offense of unlawful display of a firearm.
A defendant is entitled to an instruction on a lesser included offense if two prongs
are established. State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). The
legal prong is "each of the elements of the lesser offense must be a necessary element of
the offense charged." Id. The factual prong is the evidence in the case must support an
inference that only the lesser crime was committed. Id. at 448.
Unlawful display of a firearm is a lesser included offense of attempted first degree
robbery. Id. Mr. Nelson therefore has met the legal prong of the Workman test.
To establish the factual prong, "evidence must affirmatively establish the
defendant's theory of the case-it is not enough that the jury might disbelieve the
evidence pointing to guilt." State v. Fernandez-Medina, 141 Wn.2d 448,456, 6 P.3d
1150 (2000). This court must view the evidence in the light most favorable to the party
that requested the instruction. Id. at 455-56.
A person is guilty of unlawfully displaying a firearm if the person displays a
firearm in a manner that manifests an intent to intimidate another or warranting alarm in
another. See RCW 9.41.270(1). Mr. Nelson fails to satisfy the factual prong. We
14 No. 34032-5-111 State v. Nelson
previously held the evidence was insufficient for a trier of fact to find the device was a
firearm. Also, there was no affirmative evidence that Mr. Nelson committed unlawful
display of a firearm to the exclusion of attempted first degree robbery. Here, the
unrefuted evidence is that Mr. Nelson threatened to kill Ms. Meinhold unless she
facilitated his theft of oxycodone. For these reasons, we reject Mr. Nelson's argument.
SAG ISSUES
A. JURISDICTION
Mr. Nelson contends that the trial court lacked jurisdiction. Mr. Nelson argues that
jurisdiction is lacking because the elected prosecutor did not respond to a written request
for information sent by Mr. Nelson. We disagree with Mr. Nelson's argument.
The State establishes trial court jurisdiction by presenting evidence that any or all
of the essential elements of the offenses occurred in the state. State v. L.J.M, 129 Wn.2d
386, 392, 918 P.2d 898 (1996); see also RCW 9A.04.030(1). This court reviews
jurisdictional questions de novo. State v. Squally, 132 Wn.2d 333, 340, 937 P.2d 1069
(1997).
Here, the State sufficiently established the crimes took place in Washington. Ms.
Meinhold testified she lives in Yakima and was working at the Rite Aid store on Nob Hill
Avenue, which is where Mr. Nelson threatened her. Officer Jamie Gonzalez testified he
15 No. 34032-5-III State v. Nelson
was working in Yakima when he attempted to question Mr. Nelson, and Mr. Nelson then
fled in his Mercedes at a high speed and eluded .him. Substantial evidence supports the
jury's finding (as set forth in the to-convict instructions) that the crimes occurred in the
State of Washington. Because that finding is supported by substantial evidence, we
conclude the trial court had jurisdiction.
B. CONFLICT OF INTEREST
Mr. Nelson asserts that his appellate counsel "is a conflict of interest and
compelled to lie." SAG at 1. Mr. Nelson makes the same contentions against his trial
counsel.
This court considers an issue raised in a SAG only when the SAG adequately
informs this court of the nature and occurrence of the alleged error. RAP 10.lO(c); State
v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008). This court is not obligated to
search the record in support of claims made in the SAG. State v. Thompson, 169 Wn.
App. 436, 493, 290 P.3d 996 (2012).
Mr. Nelson does not cite to the record to support his arguments. Mr. Nelson,
without elaboration, simply asserts counsel are conflicts of interest. Contrary to his
assertion, the record establishes that Mr. Nelson was satisfied with trial counsel. Mr.
Nelson personally spoke at sentencing in allocution. His first words were, "[f]irst and
16 No. 34032-5-III State v. Nelson
foremost, I'd like to thank my attorney, Mr. Dalan, for his time and effort that he put forth
on my behalf in this case, his professionalism." RP at 542. Mr. Nelson does not
adequately inform this court of the nature and occurrence of his allegations, and we
decline to review these alleged errors.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Mr. Nelson argues he received ineffective assistance of counsel. Mr. Nelson
contends his counsel was ineffective because he "continually coersd [sic] me to waive my
6th Amendment Right." Suppl. SAG at 1. He also asserts his counsel was ineffective for
failing to object to the admission of Mr. Nelson's videotaped police interview. We
disagree.
1. Sixth Amendment rights
Although the Sixth Amendment protects numerous rights, Mr. Nelson appears to
refer by argument only to the right to a speedy trial.
CrR 3 .3 generally requires the State to bring an in-custody defendant to trial within
60 days of arraignment; if not, the trial court will dismiss the case with prejudice.
CrR 3.3(b). The threshold for a constitutional speedy trial violation, however, is higher
than that for a violation of CrR 3.3. State v. Fladebo, 113 Wn.2d 388,393, 779 P.2d 707
(1989); see also U.S. CONST. amend. VI; CONST. art. I,§ 22. The constitutional right to a
17 No. 34032-5-III State v. Nelson
speedy trial is not violated by passage of a fixed time but instead the expiration of a
reasonable time. State v. Monson, 84 Wn. App. 703, 711, 929 P.2d 1186 (1997). This
court reviews de novo an allegation that the constitutional rights to speedy trial have been
violated. State v. Iniguez, 167 Wn.2d 273,280, 217 P.3d 768 (2009). Because some
delay is both necessary and inevitable, the appellant bears the burden of demonstrating
that the delay between the initial accusation and the trial was unreasonable and created a
presumptively prejudicial delay. Id. at 283. If this showing is made, this court next
considers several nonexclusive factors in order to determine whether the appellant's
constitutional speedy trial rights were violated. Id. These factors are: the length and
reason for the delay, whether the defendant has asserted his right, and the ways in which
the delay caused prejudice. Barker v. Wingo, 407 U.S. 514,530, 92 S. Ct. 2182, 33 L.
Ed. 2d 101 (1972).
Here, Mr. Nelson does not surpass the initial showing that the delay was
presumptively prejudicial. Although there was a delay of approximately 17 months
between arrest and trial, Mr. Nelson was charged with a very serious offense, as well as
attempting to elude a police vehicle after an extensive pursuit. He also faced life
imprisonment without the possibility of parole, as this was his third serious violent felony.
Given the severity of both the charges and the potential sentence, 17 months is a
18 No. 34032-5-111 State v. Nelson
reasonable amount of time for Mr. Nelson and the State to prepare for trial. Because Mr.
Nelson does not meet his burden in showing a presumptively prejudicial delay, this court
need not consider the factor test.
2. Failure to object to videotaped police interview
Mr. Nelson claims his counsel was ineffective for failing to object to the admission
of his videotaped interview with law enforcement.
A criminal defendant has a Sixth Amendment right to effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). "A claim of ineffective assistance of counsel is an issue of constitutional
magnitude that may be considered for the first time on appeal." State v. Ky/lo, 166 Wn.2d
856, 862, 215 P .3d 177 (2009). The claim is reviewed de nova. State v. Suther by, 165
Wn.2d 870, 883, 204 P.3d 916 (2009). To establish ineffective assistance of counsel, a
defendant must prove the following two-pronged test:
( 1) [D]efense counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances; and (2) defense counsel's deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing State v.
Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)). There is a strong presumption
19 No. 34032-5-III State v. Nelson
that counsel's performance was reasonable. State v. Grier, 171 Wn.2d 17, 42,246 P.3d
1260(2011 ). To rebut this presumption, the defendant bears the burden of establishing
that no conceivable legitimate tactic exists to explain counsel's performance. Id.
Contrary to Mr. Nelson's assertion, his counsel did object to the videotaped
interview. The trial court excused the jury and the parties carefully went through the
transcript of the police video to identify the portions that were unduly prejudicial to Mr.
Nelson. During the discussion, the State and trial court agreed to excise several
prejudicial portions of the video that had little probative value. The record shows that
Mr. Nelson's counsel carefully assessed the videotaped interview and successfully
prevented the jury from viewing several prejudicial portions. Mr. Nelson does not meet
his burden in showing that counsel's performance fell below an objective standard of
reasonableness in this instance.
APPELLATE COSTS
Mr. Nelson requests that this court deny the State an award of appellate costs in the
event the State substantially prevails. Mr. Nelson has complied with our June 2016
"General Order" and has satisfactorily shown he lacks the current or likely future ability
to pay appellate costs. We therefore grant his request and deny the State an award of
appellate costs.
20 No. 34032-5-III State v. Nelson
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
j I CONCUR:
21 No. 34032-5-111
PENNELL, J. (concurring)- I concur in the court's decision affirming Edward
Nelson's conviction. I also agree that the trial court's instructions did not accurately
recount the standard for whether a robbery victim has representative capacity over a piece
of property. I write separately because I disagree that this flaw in the instructions went to
an essential element of the crime charged.
Unlike State v. Richie, 191 Wn. App. 916, 365 P.3d 770 (2015), this case does not
involve a charge of first degree robbery. Instead, Mr. Nelson was charged with attempted
first degree robbery. Attempted first degree robbery only has two elements: (1) the
defendant intended to commit the crime of robbery, and (2) in furtherance of that intent,
the defendant took a substantial step toward the commission of the crime of robbery.
RCW 9A.28.020(1); State v. Kier, 164 Wn.2d 798, 807, 194 P.3d 212 (2008). Neither of
these elements requires the State to prove the victim of the attempted robbery had
ownership or representative capacity over the property the defendant intended to steal.
Although a victim's ownership or representative capacity is not an element of
attempted robbery, it is a nonstatutory element of robbery. Richie, 191 Wn. App. at 924.
To adequately instruct a jury on attempted robbery, a court must educate the jury on the
definition of robbery. Thus, in an attempted robbery case, the court's instructions must
include an instruction accurately outlining the elements of robbery.
Washington's pattern jury instructions suggest two methods for issuing criminal
attempt instructions. The most straightforward manner is for the court to issue a No. 34032-5-111 State v. Nelson
to-convict instruction limited to the essential elements of attempt. 1 A separate instruction
can then be provided delineating the elements of the crime that was the object of the
attempt. An alternative is to provide an instruction setting forth the definition of attempt,
and then drafting the to-convict instruction by "using the word 'attempt' along with the
elements of the underlying offense." 1 lA WASHINGTON PRACTICE: WASHINGTON
PATTERN JURY INSTRUCTIONS: CRIMINAL 100.01, cmt. at 432 (4th ed. 2016) (WPIC).
When the underlying offense has a complex series of elements (as is true for first degree
robbery), this latter approach can be convoluted since a to-convict instruction must
contain all elements of the crime charged. See State v. Smith, 131 Wn.2d 258, 263,
930 P.2d 917 (1997) (the to-convict "instruction must contain all of the elements of the
crime because it serves as a 'yardstick' by which the jury measures the evidence to
determine guilt or innocence") (quoting State v. Emmanuel, 42 Wn.2d 799,819,259 P.2d
845 (1953)).
The trial court here opted for the latter, more convoluted approach. The result was
a flawed instruction. As written, the instruction misidentified the requisite nature of the
defendant's intent. It should have been specified as intent to commit first degree robbery,
not theft of property. In addition, the substantial step portion of the instruction was too
narrow and failed to reflect a relationship with the defendant's intent. These errors are in
1 l lA WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 100.02, at 434 (4th ed. 2016).
2 No. 34032-5-III State v. Nelson
addition to the trial court's incorrect substitution of Myung Meinhold's employee status
for the requirement of representative capacity, as pointed out by the majority.
Assuming the trial court provided a definition of attempt under WPIC 100.01, an
acceptable alternative to the trial court's to-convict instruction would be:
To convict the defendant of the crime of Attempted First Degree Robbery in Count 1, the following elements must be proved beyond a reasonable doubt: (1) On or about August 15, 2014, the defendant did an act which was a substantial step towards the commission of First Degree Robbery; (2) That act was done with intent to commit First Degree Robbery; and (3) That act occurred in the State of Washington.
The completed crime of First Degree Robbery has the following elements: (a) The defendant took property from the person or presence of another, Myung B. Meinhold; (b) Myung B. Meinhold owned, was acting as a representative of the owner of, or was in possession of the property taken; (c) The defendant intended to commit theft of the property; (d) The taking was against Myung B. Meinhold's will by the defendant's use or threatened use of immediate force, violence, or fear of injury to Myung B. Meinhold; (e) Force or fear was used by the defendant to obtain or retain possession of the property; (f) In the commission of these acts the defendant displayed what appeared to be a firearm or other deadly weapon; and (g) The acts occurred in the State of Washington.
See 11 WPIC 37.02, at 716-17. In addition, because the State submitted its case under a
theory of representative capacity, a separate instruction should have been given defining
a representative of an owner as a "bailee, agent, employee or other representative of the
3 No. 34032-5-III State v. Nelson
owner if he or she has care, custody, control, or management of the property." Richie,
191 Wn. App. at 925. As pointed out by the majority, not all employees have care,
custody, or control over an employer's property. Accordingly, defining representative
capacity by employment status is inappropriate.
While the trial court's to-convict instruction was legally inaccurate, reversal is
unwarranted. The only instructional error raised by Mr. Nelson pertains to the trial
court's substitution of Ms. Meinhold's employee status for the requirement of proof of
representative capacity. Because this case only involved an attempt, Ms. Meinhold's lack
of actual capacity over the property sought by Mr. Nelson had no bearing on the State's
case. Impossibility is not a defense to an attempt. RCW 9A.28.020(2). Regardless of
whether Ms. Meinhold actually could have obtained the drugs for Mr. Nelson, the State's
evidence showed Mr. Nelson thought she could. By demanding drugs from Ms.
Meinhold under threat of deadly force, Mr. Nelson evinced an intent to commit the crime
of first degree robbery and took a substantial step toward doing so. The trial court's
instructional error was harmless.
Pennell, J.