Filed Washington State Court of Appeals Division Two
October 10, 2023 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 57936-7-II
Respondent,
v.
SHELDON LINN HOLLAND, UNPUBLISHED OPINION
Appellant,
SONTOSHA LYNN DUCKETT,
Defendant.
GLASGOW, C.J.—Sheldon Linn Holland was charged with second degree theft after he and
a woman were caught shoplifting from a store. At trial, he proposed a lesser-degree instruction for
third degree theft, arguing that the jury could find he did not steal enough merchandise to constitute
second degree theft. The trial court refused to issue the lesser-degree instruction, relying on the
test articulated in State v. Fernandez-Medina.1 The jury convicted Holland.
Holland appeals. He argues that the trial court relied on the wrong legal standard in
rejecting the proposed instruction. Under the correct test, he asserts the jury could have found that
he stole less than $750 worth of merchandise, the minimum amount required to convict him of
second degree theft. He also raises several additional arguments challenging his conviction in a
statement of additional grounds (SAG). The State concedes that the trial court relied on the wrong
legal standard in rejecting the lesser-degree instruction.
1 141 Wn.2d 448, 6 P.3d 1150 (2000). No. 57936-7-II
We accept the State’s concession, reverse Holland’s conviction, and remand for a new trial.
Because we reverse the conviction, we need not reach the contentions in Holland’s SAG.
FACTS
Police responded to a clothing store because of a report about a woman causing a
disturbance in the store while looking for a car key that she had lost. The dispatch also reported
that the woman and a man were seen shoplifting from the store.
Upon arriving at the store, police found a woman matching the description of the person
causing a disturbance in a vehicle in the parking lot. Several shoeboxes and mesh bags from the
store were visible in the vehicle’s cargo area. The store typically provided mesh bags instead of
shopping carts for customers to carry merchandise while they shopped inside the store. The store
then retained the mesh bags when customers purchased items, and it provided paper bags to
transport items out of the store. The woman initially refused to talk to police, but she eventually
consented to let police return the merchandise from the vehicle to the store.
Police found Holland near the front door of the store. Holland told them that he was looking
for his sister’s car keys but refused to identify the woman to police. Holland’s wallet was in the
back seat of the woman’s vehicle.
The State charged Holland with second degree theft. To convict someone of second degree
theft, a jury must find that the person stole property exceeding $750 but less than $5,000 in value.
RCW 9A.56.040(1)(a). Theft of property that is worth less than $750 constitutes third degree theft.
RCW 9A.56.050(1).
At trial, a store employee testified that he saw both Holland and the woman each leave the
store carrying multiple mesh bags of merchandise that they did not pay for. The employee was not
2 No. 57936-7-II
sure whether they walked into the store together. Although the employee saw Holland and the
woman talk to each other while they were in the store, they were primarily in different areas of the
store, and they left several minutes apart. The employee watched each of them leave carrying two
to three mesh bags of merchandise that they did not pay for. He saw Holland carrying “probably
four or five pairs of shoes” in boxes that were in the bags. Verbatim Rep. of Proc. (VRP) at 179.
The most expensive shoes he saw Holland take, which were identifiable because they were sold in
orange boxes, sold for about $99. Another employee estimated that each mesh bag could fit four
to five shoeboxes.
Overall, 21 pairs of shoes and 5 apparel items were recovered from the vehicle. Not all of
the shoes were in boxes. The total value of the store’s merchandise recovered from the vehicle was
approximately $1,750.
Holland requested a lesser-degree instruction that would have allowed the jury to convict
him of third degree theft. He argued that if the jury did not apply accomplice liability to hold him
responsible for the woman’s thefts, then it could find that he stole less than $750 worth of
merchandise, based on how many shoeboxes he was seen stealing and the price of the shoes. He
also argued that, because not all of the shoes in the car were in boxes, the jury could find that some
of them had been stolen in a different theft because there was not time to unbox the shoes before
Holland and the woman were arrested.
The State argued that under Fernandez-Medina, “‘The evidence must raise an inference
that only the lesser-included inferior degree . . . was committed to the exclusion of the charged
offense.’” VRP at 259-60.
3 No. 57936-7-II
The trial court refused to give the instruction. It stated that it was “adhering to the test
announced in . . . Fernandez-Medina.” VRP at 263. The trial court explained, “[O]ne of the
elements for the Court to give that [lesser-degree] instruction is that there’s evidence that the
defendant committed only the inferior offense.” VRP at 262. “And here, even though there may
be evidence that [Holland] perhaps committed theft in the third degree, it does not meet the test
that he committed only theft in the third degree.” Id. (emphasis added).
In closing argument, defense counsel conceded that Holland had stolen five pairs of shoes
but argued that the value that Holland alone stole could not have exceeded $750. The jury,
nevertheless, convicted Holland of second degree theft. The trial court imposed a sentence of 16
months, the middle of the standard sentencing range.
Holland appeals.
ANALYSIS
Holland argues, and the State concedes, that the trial court relied on the incorrect legal
standard to reject Holland’s proposed lesser-degree instruction. We accept the State’s concession.
We review a trial court’s refusal to give a jury instruction based on a question of law de
novo. State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998). We review a refusal to give an
instruction based on a question of fact for abuse of discretion. Id. at 771-72. Here, the trial court
acknowledged that there was “evidence that [Holland] perhaps committed theft in the third degree”
but refused to give the lesser-degree instruction under a legal test requiring evidence “that
[Holland] committed only theft in the third degree.” VRP at 262. An erroneous failure to instruct
on a lesser offense is prejudicial, so the remedy is a new trial. State v. Parker, 102 Wn.2d 161,
166, 683 P.2d 189 (1984).
4 No. 57936-7-II
When a defendant is charged with “an offense consisting of different degrees, the jury may
find the defendant not guilty of the degree charged in the indictment or information, and guilty of
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Filed Washington State Court of Appeals Division Two
October 10, 2023 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 57936-7-II
Respondent,
v.
SHELDON LINN HOLLAND, UNPUBLISHED OPINION
Appellant,
SONTOSHA LYNN DUCKETT,
Defendant.
GLASGOW, C.J.—Sheldon Linn Holland was charged with second degree theft after he and
a woman were caught shoplifting from a store. At trial, he proposed a lesser-degree instruction for
third degree theft, arguing that the jury could find he did not steal enough merchandise to constitute
second degree theft. The trial court refused to issue the lesser-degree instruction, relying on the
test articulated in State v. Fernandez-Medina.1 The jury convicted Holland.
Holland appeals. He argues that the trial court relied on the wrong legal standard in
rejecting the proposed instruction. Under the correct test, he asserts the jury could have found that
he stole less than $750 worth of merchandise, the minimum amount required to convict him of
second degree theft. He also raises several additional arguments challenging his conviction in a
statement of additional grounds (SAG). The State concedes that the trial court relied on the wrong
legal standard in rejecting the lesser-degree instruction.
1 141 Wn.2d 448, 6 P.3d 1150 (2000). No. 57936-7-II
We accept the State’s concession, reverse Holland’s conviction, and remand for a new trial.
Because we reverse the conviction, we need not reach the contentions in Holland’s SAG.
FACTS
Police responded to a clothing store because of a report about a woman causing a
disturbance in the store while looking for a car key that she had lost. The dispatch also reported
that the woman and a man were seen shoplifting from the store.
Upon arriving at the store, police found a woman matching the description of the person
causing a disturbance in a vehicle in the parking lot. Several shoeboxes and mesh bags from the
store were visible in the vehicle’s cargo area. The store typically provided mesh bags instead of
shopping carts for customers to carry merchandise while they shopped inside the store. The store
then retained the mesh bags when customers purchased items, and it provided paper bags to
transport items out of the store. The woman initially refused to talk to police, but she eventually
consented to let police return the merchandise from the vehicle to the store.
Police found Holland near the front door of the store. Holland told them that he was looking
for his sister’s car keys but refused to identify the woman to police. Holland’s wallet was in the
back seat of the woman’s vehicle.
The State charged Holland with second degree theft. To convict someone of second degree
theft, a jury must find that the person stole property exceeding $750 but less than $5,000 in value.
RCW 9A.56.040(1)(a). Theft of property that is worth less than $750 constitutes third degree theft.
RCW 9A.56.050(1).
At trial, a store employee testified that he saw both Holland and the woman each leave the
store carrying multiple mesh bags of merchandise that they did not pay for. The employee was not
2 No. 57936-7-II
sure whether they walked into the store together. Although the employee saw Holland and the
woman talk to each other while they were in the store, they were primarily in different areas of the
store, and they left several minutes apart. The employee watched each of them leave carrying two
to three mesh bags of merchandise that they did not pay for. He saw Holland carrying “probably
four or five pairs of shoes” in boxes that were in the bags. Verbatim Rep. of Proc. (VRP) at 179.
The most expensive shoes he saw Holland take, which were identifiable because they were sold in
orange boxes, sold for about $99. Another employee estimated that each mesh bag could fit four
to five shoeboxes.
Overall, 21 pairs of shoes and 5 apparel items were recovered from the vehicle. Not all of
the shoes were in boxes. The total value of the store’s merchandise recovered from the vehicle was
approximately $1,750.
Holland requested a lesser-degree instruction that would have allowed the jury to convict
him of third degree theft. He argued that if the jury did not apply accomplice liability to hold him
responsible for the woman’s thefts, then it could find that he stole less than $750 worth of
merchandise, based on how many shoeboxes he was seen stealing and the price of the shoes. He
also argued that, because not all of the shoes in the car were in boxes, the jury could find that some
of them had been stolen in a different theft because there was not time to unbox the shoes before
Holland and the woman were arrested.
The State argued that under Fernandez-Medina, “‘The evidence must raise an inference
that only the lesser-included inferior degree . . . was committed to the exclusion of the charged
offense.’” VRP at 259-60.
3 No. 57936-7-II
The trial court refused to give the instruction. It stated that it was “adhering to the test
announced in . . . Fernandez-Medina.” VRP at 263. The trial court explained, “[O]ne of the
elements for the Court to give that [lesser-degree] instruction is that there’s evidence that the
defendant committed only the inferior offense.” VRP at 262. “And here, even though there may
be evidence that [Holland] perhaps committed theft in the third degree, it does not meet the test
that he committed only theft in the third degree.” Id. (emphasis added).
In closing argument, defense counsel conceded that Holland had stolen five pairs of shoes
but argued that the value that Holland alone stole could not have exceeded $750. The jury,
nevertheless, convicted Holland of second degree theft. The trial court imposed a sentence of 16
months, the middle of the standard sentencing range.
Holland appeals.
ANALYSIS
Holland argues, and the State concedes, that the trial court relied on the incorrect legal
standard to reject Holland’s proposed lesser-degree instruction. We accept the State’s concession.
We review a trial court’s refusal to give a jury instruction based on a question of law de
novo. State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998). We review a refusal to give an
instruction based on a question of fact for abuse of discretion. Id. at 771-72. Here, the trial court
acknowledged that there was “evidence that [Holland] perhaps committed theft in the third degree”
but refused to give the lesser-degree instruction under a legal test requiring evidence “that
[Holland] committed only theft in the third degree.” VRP at 262. An erroneous failure to instruct
on a lesser offense is prejudicial, so the remedy is a new trial. State v. Parker, 102 Wn.2d 161,
166, 683 P.2d 189 (1984).
4 No. 57936-7-II
When a defendant is charged with “an offense consisting of different degrees, the jury may
find the defendant not guilty of the degree charged in the indictment or information, and guilty of
any degree inferior thereto.” RCW 10.61.003. A defendant is entitled to an instruction about a
lesser-included or lesser-degree offense when they satisfy the legal prong that “each of the
elements of the lesser offense is a necessary element of the offense charged” and the factual prong
that “evidence in the case supports an inference that the lesser crime was committed.” State v.
Coryell, 197 Wn.2d 397, 400, 483 P.3d 98 (2021) (citing State v. Workman, 90 Wn.2d 443, 447-
48, 584 P.2d 382 (1978)).
Fernandez-Medina generated confusion about the factual prong of Workman by asserting
that “the evidence must raise an inference that only the lesser included/inferior degree offense was
committed to the exclusion of the charged offense.” 141 Wn.2d at 455. The Washington Supreme
Court has since explained that the factual prong of Workman is satisfied if “based on some
evidence admitted, the jury could reject the greater charge and return a guilty verdict on the lesser.”
Coryell, 197 Wn.2d at 407.
Holland was charged with second degree theft under RCW 9A.56.040(1)(a), which
requires the theft of property or services to exceed $750 in value but not to exceed $5,000 in value.
Holland sought a lesser-degree instruction for third degree theft, which occurs when a person steals
property or services that do not exceed $750 in value. RCW 9A.56.050(1)(a). Thus, Holland was
entitled to the lesser-degree instruction as long as there was evidence to support an inference that
he committed third degree theft by taking goods worth $749 or less. Coryell, 197 Wn.2d at 400.
Here, although merchandise totaling roughly $1,750 in value was recovered from the
vehicle, there was evidence that some of the merchandise was stolen at a different time, and it was
5 No. 57936-7-II
not clear whether the items that Holland was seen leaving the store with exceeded $750 in value.
This evidence supports an inference that Holland may have committed only third degree theft,
especially if the jury did not find that he was an accomplice to the woman’s theft. The trial court
refused to give the lesser-degree instruction on the basis that “even though there may be evidence
that [Holland] perhaps committed theft in the third degree, it does not meet the test that he
committed only theft in the third degree.” VRP at 262. This was an error and we must reverse
Holland’s conviction. Parker, 102 Wn.2d at 166.
CONCLUSION
We reverse and remand for a new trial. Because we reverse, we need not reach the
contentions in Holland’s SAG.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Glasgow, C.J. We concur:
Veljacic, J.
Price, J.