Opinion
No. 35795-0-II.
December 24, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-02543-3, Ronald E. Culpepper, J., entered December 13, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Houghton, C.J., and Hunt, J.
George Arthur Smith appeals his conviction of first degree robbery. We affirm.
FACTS
On June 7, 2006, Nordstrom loss prevention officers Zolanda Butler and Kristin Cumbee, alert for a possible "grab and run?, "noticed Smith walking quickly toward the exit carrying three Coach handbags with tickets and security sensors still attached but not a Nordstrom's shopping bag. As Smith touched the door, Butler identified the two women as loss prevention officers and ordered, "Drop the bags, drop the bags." 2 RP at 53. Smith pushed Butler out of his way as he exited the store.
A "grab and run?" occurs when a criminal runs merchandise out to a waiting car parked for a quick get-away. 2 RP at 49.
Cumbee followed Smith out the door and tried to grab the handbags from him. He pushed her away, and she tripped and fell, scraping her knee, ankle, and palm. Smith, still carrying the handbags, ran to a waiting car and tried to enter, but the car jerked away each time he tried to enter. Smith then began to dodge among the parked cars in the parking lot. After a chase, Brian Nedley and another Nordstrom's employee managed to detain Smith.
The State charged Smith with one count of first degree robbery and two counts of third degree assault. At trial, Butler, Cumbee, and Nedley testified to their efforts to prevent Smith from leaving with the handbags. Nedley recalled that Smith struggled with Cumbee, "like him pushing her off to try to get away." 2 RP at 125. Smith did not testify.
In the "to convict" instruction on first degree robbery, the trial court instructed the jury that it must find the following elements beyond a reasonable doubt to find Smith guilty of first degree robbery:
(1) That on or about the 7th day of June, 2006, the defendant unlawfully took personal property, not belonging to the defendant, from the person or in the presence of the owner or a person entrusted by the owner with care, custody or control over the property;
(2) That the defendant intended to commit theft of the property;
(3) That the taking was against the person's will by the defendant's use or threatened use of immediate force, violence or fear of injury to said person(s);
(4) That the 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;
(5) That in the commission of these acts or in immediate flight therefrom the defendant inflicted bodily injury on Kristin Cumbee; and (6) That these acts occurred in the State of Washington.
CP at 44. The jury found Smith guilty of first degree robbery and one count of third degree assault. On Smith's motion, the trial court dismissed the third degree assault count because it merged with the first degree robbery conviction. Smith appeals his conviction for first degree robbery.
ANALYSIS
Smith argues that the "to convict" instruction on first degree robbery that the trial court read to the jury contained an extra element, one requiring the State to prove that force was used in the initial taking of the handbags. He asserts that, under the "law of the case" doctrine, the State must prove this extra element beyond a reasonable doubt because it was present in the "to convict" instruction; and, he argues, the State failed to do this. The State maintains that the "to convict" instruction did not contain any elements beyond those required by the definition of first degree robbery. Additionally, the State contends that it provided sufficient evidence to prove the elements of first degree robbery beyond a reasonable doubt. We agree with the State.
I. "To Convict" Instruction
Challenged jury instructions are reviewed de novo. State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998). They are adequate when, read as a whole, they properly inform the jury of the law, are not misleading, and permit the parties to argue their theories of the case. State v. Tili, 139 Wn.2d 107, 126, 985 P.2d 365 (1999) (citing State v. Theroff, 95 Wn.2d 385, 389, 622 P.2d 1240 (1980)).
Smith argues that the third paragraph in the "to convict" instruction adds an additional element of force to that required by the statutory definition of first degree robbery by requiring "[t]hat the taking was against the person's will by the defendant's use or threatened use of immediate force, violence or fear of injury to said person(s)." CP at 44. He argues that this paragraph adds a separate element of force to that present in the fourth paragraph, which requires "[t]hat the 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." CP at 44. Smith is incorrect.
Smith's "to convict" instruction did not contain any additional elements. The elements track the statutory definition of first degree robbery. In relevant part, RCW 9A.56.190 provides that first degree robbery occurs when an individual
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.
RCW 9A.56.190. The Supreme Court, in interpreting this language, has stated that the plain language of the statute uses the second mention of force to define the first mention. State v. Handburgh, 119 Wn.2d 284, 291, 830 P.2d 641 (1992) (holding that the defendant need only use force only to retain stolen property, not to obtain the property, to commit first degree robbery). In Smith's "to convict" instruction, the two paragraphs regarding force have the same relationship: the second paragraph defines the preceding mention of force; it does not create a separate element. Moreover, the sample "to convict" instruction for first degree robbery in the Washington Pattern Jury Instructions includes the allegedly additional portion of this instruction. See 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 37.02, at 478-79 (2d ed. 1994). Thus, the "to convict" instruction did not add an extra element of force to the definition of first degree robbery, and the "law of the case" doctrine is inapposite. To establish that Smith committed first degree robbery, the State need only have shown that Smith used force to retain possession of the handbags or to prevent or overcome resistance to the taking beyond a reasonable doubt.
II. Sufficiency of the Evidence
Smith challenges the sufficiency of the evidence to show that he used force when he initially took the handbags. However, as established above, the State need not prove that Smith used such force; the State need only prove that Smith used or threatened the use of force to retain possession or prevent or overcome resistance to his taking of the bags.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt from that evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). By claiming insufficiency, Smith admits the truth of the State's evidence and all reasonable inferences that can be drawn from it. Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
The evidence here is sufficient to show that Smith used force to prevent the loss prevention officers from resisting his taking the handbags. Cumbee, Bulter, and Nedley, Nordstrom's employees involved in the incident, all testified that Smith pushed Butler and Cumbee when the two tried to prevent him from taking store merchandise. Butler testified that when she identified herself and Cumbee as loss prevention officers and told Smith to drop the handbags, Smith "pushed [Butler] out of the way" on his way out the Nordstrom's exit. 2 RP at 53-54. She also recounted how, when Cumbee tried to grab the handbags from Smith, "[h]e pushed and she tripped and fell." RP at 54. Cumbee testified that she fell hard enough to scrape her knee, ankle, and palm. She stated that Smith, still carrying the handbags, ran to the waiting car once she fell and tried to get in. Nedley also testified that he saw Smith push Cumbee, "a struggle, like him pushing her off to try to get away." 2 RP at 125. Thus, the State provided sufficient evidence for the jury to find beyond a reasonable doubt that Smith used force to retain possession of the handbags and to prevent the Nordstrom's employees from resisting his taking the handbags.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, C.J. and HUNT, J., concur.