State Of Washington v. Michael William Richie , 191 Wash. App. 916 ( 2015 )

Filed
Washington State
Court of Appeals
Division Two
December 22, 2015
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46223-1-II
Appellant,
v.
MICHAEL WILLIAM RICHIE, PUBLISHED OPINION
Respondent
Maxa, J. — Michael Richie appeals his conviction for first degree robbery. He argues
that an implied element of the crime of robbery based on taking property in the presence of a
person is that the person have an ownership interest in, a representative interest in, or possession
of the property stolen. As a result, he argues that there was insufficient evidence to support a
first degree robbery conviction because the State failed to prove this element and that the to-
convict jury instruction relieved the State of its burden of proving this element.
We hold that (1) an essential element of first degree robbery is that the victim had an
ownership, representative, or possessory interest in the property taken, (2) the State presented
sufficient evidence that Richie took property from a person who had a representative interest in
the property stolen, and (3) the to-convict instruction improperly relieved the State of its burden
of proving the essential element of robbery that the victim had an ownership, representative, or
possessory interest in the property taken.1 Accordingly we reverse Richie’s conviction for first
degree robbery and remand for a new trial.
1
Richie also argues that (1) the trial court erred by denying Richie’s proposed jury instruction
and granting the State’s misleading instruction regarding this element, (2) the to-convict
No. 46223-1-II
FACTS
On September 22, 2013, Richie asked James Beeson to drive him to Walgreens so he
could purchase some items. As Beeson was parking, Kersten Gouveia was arriving for her
graveyard shift as sales associate. Beeson backed into a parking spot near the entrance, which
made Gouveia suspicious of the car.
Although Gouveia was a Walgreens employee, she was not yet on duty and was wearing
a coat over her Walgreens badge and shirt. She picked up a beverage to drink before her shift
started and proceeded to the front register to pay. While she was at the register, Gouveia
watched Richie enter and head to the liquor section. She told the employee at the cash register,
Leslie Hammitt, to call a code used to alert employees of a possible theft.
Richie removed two bottles of brandy from the shelf and walked toward the front of the
store, holding one bottle by the neck in each hand. As Richie approached, Gouveia took a few
steps back from the checkout counter. Richie walked between the checkout counter and
Gouveia. Gouveia said to Richie, “[S]ir, you need to pay for that here. Let me help you.”
Report of Proceedings (RP) at 296. She later testified that she was “giving him good customer
service” and trying to help him with the bottles. RP at 302.
When Gouveia reached to help, Richie hit her in the head with one of the bottles.
Gouveia then grabbed for the other bottle, and Richie ran out of the front door dragging Gouveia,
who was still holding onto the bottle in Richie’s hand. Richie eventually broke away from
instruction erroneously failed to require that the jury find that the robbery victim was the person
named as the victim in the information, and (3) the prosecutor committed misconduct during
closing argument. Because we reverse on other grounds, we do not address these arguments.
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No. 46223-1-II
Gouveia and drove off in Beeson’s car. The State charged Richie with first degree robbery and
second degree assault.
The jury found Richie guilty of both charges. The trial court dismissed the assault
conviction on double jeopardy grounds and sentenced Richie as a persistent offender to life
without the possibility of parole. Richie appeals his conviction for first degree robbery.
ANALYSIS
A. IMPLIED ESSENTIAL ELEMENT OF ROBBERY
The foundation for Richie’s sufficiency of the evidence and jury instruction challenges is
his argument that an essential element of first degree robbery is that the victim have an
ownership interest in, a representative interest in, or possession of the property stolen. We agree.
The essential elements of the crime are those that the prosecution must prove to sustain a
conviction. State v. Peterson, 168 Wash. 2d 763, 772, 230 P.3d 588 (2010). In determining the
essential elements, we first look to the statute. State v. Mason, 170 Wash. App. 375, 379, 285 P.3d
154 (2012). RCW 9A.56.190 defines robbery:
A person commits robbery when he or she unlawfully takes personal property from
the person of another or in his or her presence against his or her will by the use or
threatened use of immediate force, violence, or fear of injury to that person or his
or her 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; in either of which cases the degree of force is immaterial.
With regard to taking property from a person’s presence, the language of the statute does not
require that the person have an ownership, representative, or possessory interest in the property.
However, a criminal statute is not always conclusive regarding the elements of a crime.
Courts may find nonstatutory, implied elements. State v. Miller, 156 Wash. 2d 23, 28, 123 P.3d
3
No. 46223-1-II
827 (2005). In Miller, the Supreme Court recognized that robbery is an example of a crime with
nonstatutory elements that were implied by “a near eternity of common law and the common
understanding of robbery.” Id. For example, the intent to commit theft is an implied, essential
element to robbery. State v. Kjorsvik, 117 Wash. 2d 93, 98, 812 P.2d 86 (1991). Although RCW
9A.56.190 states only that the defendant must unlawfully take property, the pattern to-convict
jury instruction for first degree robbery requires both that “the defendant unlawfully took
personal property” and “the defendant intended to commit theft of the property.” 11
WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 37.02, at 667
(3d ed. 2008) (WPIC); see also WPIC 37.50 cmt. at 259 (3d ed. Supp. 2014). Therefore, we
look to case law to determine if robbery has a nonstatutory element that the victim have an
ownership, representative, or possessory interest in the property stolen.
In 1909, the Supreme Court stated that robbery included an element that “the property
must be taken from the person of the owner, or from his immediate presence, or from some
person, or from the immediate presence of some person, having control and dominion over it.”
State v. Hall, 54 Wash. 142, 143-44, 102 P. 888 (1909). The court provided an example:
[I]f A takes the property of B from the immediate presence of C, by force or
putting in fear, A is not guilty of the crime of robbery unless C had control and
dominion over B’s property at the time of the taking.
Id. at 144. As a result, the court held that the information alleging robbery was defective because
it alleged the taking of property belonging to an entity from the immediate presence of a
particular person, without alleging any connection between the person and the property. Id. at
143-44.
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No. 46223-1-II
Division One of this court adopted the requirement of ownership, representative capacity,
or possession in State v. Latham, 35 Wash. App. 862, 670 P.2d 689 (1983). The court stated that
for the taking of property in the presence of a person to constitute a robbery under RCW
9A.56.190, that person must have (1) an ownership interest in the property taken, or (2) some
representative capacity with respect to the owner of the property taken, or (3) actual possession of
the property taken.2 Id. at 864-65. The court described Hall as holding that “the taking of
property ‘from the immediate presence of’ one who did not own the property and had no
‘connection’ with the property stolen could not constitute robbery.” Id. at 865.3
In Latham, the two defendants assaulted a car owner and his passenger as they stood
beside the car, and then the defendants stole the car. Id. at 863-64. The defendants were charged
with and convicted of two counts of robbery, one relating to the owner and one relating to the
passenger. Id. at 863-64. The court held that the passenger could not be the victim of robbery of
the car because he was not the owner of the car, had no authority from the owner to act regarding
the car, and was not in possession of the car at the time of the robbery. Id. at 866. Accordingly,
the court reversed each defendant’s robbery conviction relating to the passenger. Id.
In State v. Tvedt, the Supreme Court approved of the formulation of the robbery element
adopted in Hall and Latham. The court stated:
2
Actual possession does not require a “legally recognizable claim” to the property. Latham, 35
Wash. App. at 865. Anyone in possession of the property is deemed the owner with respect to the
robbery defendant. Id. at 866. For instance, a thief in possession of property can be a robbery
victim. Id.
3
The court also noted that there was no material difference between the robbery statute in effect
in 1909 and the version of RCW 9A.56.190 then in effect. Latham, 35 Wash. App. at 865 n.2.
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No. 46223-1-II
Nearly a century ago this court held that a conviction for robbery requires that the
person from whom or in whose presence the property is taken have an ownership
or representative interest in the property or have dominion and control over it.
State v. Hall, 54 Wash. 142, 143-44, 102 P. 888 (1909). The court rejected the
argument that a conviction could be upheld where “title was not alleged in the
person robbed, nor is any connection shown or alleged between the person robbed
and the property taken.” Hall, 54 Wash. at 143. . . . Thus, in order for a robbery
to occur, the person from whom or from whose presence the property is
taken must have an ownership, representative, or possessory interest in the
property. Hall, 54 Wash. at 143-44; see also State v. Latham, 35 Wash. App. 862,
864-66, 670 P.2d 689 (1983).
153 Wash. 2d 705, 714, 107 P.3d 728 (2005) (emphasis added).
Tvedt involved a double jeopardy challenge to multiple robbery convictions, and the
court was required to determine how to define the unit of prosecution for robbery. The court
held that the unit of prosecution for robbery is “each separate forcible taking of property from or
from the presence of a person having an ownership, representative, or possessory interest in the
property, against that person’s will.” Id. at 714-15 (emphasis added).
Hall, Latham, and Tvedt all make it clear that a defendant cannot be convicted of robbery
unless the victim has an ownership, representative, or possessory interest in the property taken.
Accordingly, we hold that this requirement is an essential, implied element of robbery.
B. SUFFICIENCY OF THE EVIDENCE
Richie argues that the State presented insufficient evidence to prove all essential elements
of first degree robbery because the State did not prove that Gouveia had an ownership,
representative, or possessory interest in the liquor bottles he stole. We disagree.
When evaluating the sufficiency of evidence for a conviction, the test is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of fact could have
found the fact at issue beyond a reasonable doubt. State v. Homan, 181 Wash. 2d 102, 105, 330
6
No. 46223-1-II
P.3d 182 (2014). We assume the truth of the State’s evidence and all reasonable inferences
drawn from that evidence when evaluating whether sufficient evidence exists. Id. at 106. We
also defer to the trier of fact’s resolution of conflicting testimony and evaluation of the
persuasiveness of the evidence. Id.
There is no dispute that Gouveia did not own the liquor bottles that Richie stole. In
addition, Gouveia arguably did not have possession of the bottles.4 The issue is whether
Gouveia was acting as the representative of the property’s owner, Walgreens, and therefore had
“control” over the property at the time of the theft.
The court in Latham elaborated on what it means to have a representative interest in
property. The court stated that a person with a representative capacity would include a bailee,
agent, employee, or other representative of the owner if he or she has care, custody, control, or
management of the property. Latham, 35 Wash. App. at 865; see also State v. Rupe, 101
Wn.2d664, 693, 683 P.2d 571 (1984) (bank teller could be a robbery victim because she had
responsibility for the money in her till and control over it); State v. Blewitt, 37 Wash. App. 397,
399, 680 P.2d 457 (1984) (stealing property in the presence of the owner’s employee can support
a robbery conviction because the employee had the implied responsibility of exercising control
over the property).
4
The testimony of both Gouveia and Richie establish that she never obtained exclusive
possession of a bottle. The State argues that Gouveia had possession when she grabbed onto the
bottle at the same time Richie was holding it and was dragged out of the store, but cites no
authority for this proposition. Because we find sufficient evidence that Gouveia had a
representative interest in the bottle, we do not address this issue.
7
No. 46223-1-II
Here, the State presented evidence that Gouveia was a Walgreens employee. The
evidence also showed that Gouveia was acting in her capacity as a Walgreens employee when
she tried to stop the theft. She testified that she tried to find the manager when she first arrived
to alert him to Richie’s suspicious activity. She then instructed the cashier to alert the other
employees of a possible theft. And Gouveia testified that she was attempting to give customer
service when she grabbed for the bottles.
Finally, the evidence showed that Walgreens believed that Gouveia was acting in her
capacity as an employee. Walgreens fired Gouveia after this incident because she violated
company policy that prohibited employees from attempting to stop shoplifters.
Richie argues that Gouveia was not acting in a representative capacity because she was
not on duty at the time of the incident, her Walgreens shirt and identification were not visible,
and she was standing in line like any other customer. However, a rational jury could have found
that regardless of whether Gouveia was on duty, she was acting in her employer’s interests at the
time of the robbery. And the cases do not require that the defendant actually know that the
victim is acting in a representative capacity at the time of the robbery.
Viewing the evidence in light most favorable to the State, the jury could have found
beyond a reasonable doubt that at the time of the robbery Gouveia was acting in a representative
capacity on behalf of Walgreens at the time of this incident. Accordingly, we hold that the State
presented sufficient evidence of the implied element of first degree robbery – that the victim
have an ownership, representative, or possessory interest in the property taken.
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No. 46223-1-II
C. TO-CONVICT JURY INSTRUCTION
Richie argues that the to-convict jury instruction relieved the State of its burden of
proving the essential element of robbery that the property was taken from or in the presence of a
person having an ownership, representative, or possessory interest in the property. We agree.
1. Failure to Object in the Trial Court
The State argues that this court should not address Richie’s challenge to the to-convict
instruction because he did not object to that instruction at trial. We disagree.
Under RAP 2.5(a)(3), we will review an issue raised for the first time on appeal if it
involves a “manifest error affecting a constitutional right.” The Sixth Amendment to the United
States Constitution and article I, section 22 of the Washington Constitution require that the jury
be instructed on all elements of a charged crime. State v. Chino, 117 Wash. App. 531, 538, 72
P.3d 256 (2003). Jury instructions that omit essential elements of a charged crime violate due
process. State v. Hassan, 184 Wash. App. 140, 148, 336 P.3d 99 (2014). Therefore, the omission
of an element of a charged crime is a manifest error affecting a constitutional right that can be
considered for the first time on appeal. State v. Mills, 154 Wash. 2d 1, 6, 109 P.3d 415 (2005).
We consider Richie’s argument that the to-convict instruction did not contain all the
elements of robbery even though he did not object at trial.
2. Omission of Implied Element
“We review 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 Wash. 2d 906, 912, 73 P.3d 1000
(2003). A to-convict instruction must contain all essential elements of a crime because it serves
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No. 46223-1-II
as a yardstick by which the jury measures the evidence to determine the defendant's guilt or
innocence. Id. at 910. 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.5 Id.
The trial court’s to-convict instruction for first degree robbery tracked the language of
WPIC 37.02. The trial court’s instruction states in part:
To convict the defendant of the crime of Robbery in the First Degree, each of
the following six elements of the crime must be proved beyond a reasonable
doubt:
(1) That on or about the 22nd day of September, 2013, the defendant
unlawfully took personal property from the person or in the presence of another;
(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 that person, or to
the person or property of another;
(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 the immediate flight therefrom
the defendant inflicted bodily injury;
(6) That any of these acts occurred in the State of Washington.
Clerk’s Papers (CP) 50 (Inst. 6).
As discussed above, whether the victim of a robbery has an ownership, representative, or
possessory interest in the property taken is an essential, implied element of first degree robbery.
This essential element is absent from the trial court’s to-convict instruction. Therefore, the trial
court’s instruction relieved the State of its burden to prove every element of the crime.
We hold that the to-convict instruction on first degree robbery was erroneous because it
did not include an essential element of the crime of first degree robbery – the requirement that
5
Richie did propose an instruction that attempted to address the requirement that that the
property was taken from or in the presence of a person having an ownership, representative, or
possessory interest in the property. The trial court refused to give this instruction.
10
No. 46223-1-II
the victim have an ownership, representative, or possessory interest in the property taken. 6 This
element also is absent from WPIC 37.02. But the fact that the trial court’s instruction was
patterned after a Washington pattern instruction does not change our conclusion. See State v.
Cronin, 142 Wash. 2d 568, 579, 14 P.3d 752 (2000).
3. Harmless Error
Under certain circumstances, the omission of an essential element of a crime from the to-
convict jury instructions may be subject to a harmless error analysis. See State v. Schaler, 169
Wash. 2d 274, 288, 236 P.3d 858 (2010). Such an omission is harmless when it is clear that it did
not contribute to the verdict; for example, when uncontroverted evidence supports the omitted
element. Id. However, “error is not harmless when the evidence and instructions leave it
ambiguous as to whether the jury could have convicted on improper grounds.” Id.
Here, the to-convict instruction omitted the essential element that the victim have an
ownership, representative or possessory interest in the stolen property. And the evidence was
ambiguous on this issue. As we held above, the evidence was sufficient to find that Gouveia was
acting as a representative of Walgreens. However, there also was evidence that Gouveia was not
on duty and should be treated like a customer rather than an employee. As a result, we cannot
know whether the jury determined that Gouveia had a representative interest in the stolen
6
Richie also argues that the to-convict instruction was erroneous because the information named
Gouveia as the robbery victim but the to-convict instruction did not. This omission may be
problematic because there were two possible victims – Gouveia and the cashier – and Richie was
charged with robbing only Gouveia. Therefore, the to-convict instruction may have allowed a
conviction of an uncharged crime. However, because we reverse on other grounds, we do not
address this issue.
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No. 46223-1-II
property before finding Richie guilty of robbery. This means that the instructional error was not
harmless.
We hold that the to-convict instruction improperly omitted an essential element of the
crime of burglary – that the victim have an ownership, representative or possessory interest in the
stolen property. And we hold that this error was not harmless. Accordingly, we reverse Richie’s
first degree robbery conviction and remand for a new trial.7
MAXA, J.
We concur:
BJORGEN, A.C.J.
LEE, J.
7
The jury also convicted Richie of second degree assault, but the trial court dismissed that
conviction on double jeopardy grounds. Because we are reversing the first degree robbery
conviction, a question exists as to the status of the assault conviction. See State v. Turner, 169
Wash. 2d 448, 466, 238 P.3d 461 (2010). But neither party has briefed this issue, and therefore we
direct the trial court to address this issue on remand.
12