                                                               FILED
                                                           OCTOBER 17, 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. 34536-0-111
                                              )
                     Respondent,              )
                                              )
              V.                              )         PUBLISHED OPINION
                                              )
SKYLER K. TODD,                               )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY, A.CJ. -        Skyler K. Todd appeals his second degree robbery

conviction. He argues the to-convict instruction was deficient for excluding an essential

element of robbery, and the trial court violated his constitutional right to a unanimous jury

verdict by not giving a unanimity instruction We disagree and affirm.

                                          FACTS

      Factual background

       On September 6, 2015, Mr. Todd entered a Home Depot store located in Spokane,

Washington. Two Home Depot loss prevention employees, Nathaniel Terrell and Brent

Doan, were present and on duty at the time. The two employees were dressed in plain

clothes to blend in with regular shoppers, but each wore an identification badge on their
No. 34536-0-III
State v. Todd


hip to display when making a stop. Mr. Todd immediately attracted the attention of the

employees because he entered the store at a fast pace, was wearing noticeably baggy

clothing, and walked immediately to the high theft area of the store. Mr. Terrell and Mr.

Doan began watching Mr. Todd closely.

       Mr. Todd stopped and grabbed an expensive Leatherman brand knife off a shelf.

He tore open the packaging and placed the knife into one of his pockets. Mr. Todd

immediately began to walk back toward the store entrance and passed the self-checkout

area of the store without stopping at any of the self-checkout stands. Mr. Doan and Mr.

Terrell positioned themselves to intercept him at the doors.

       As Mr. Todd reached the doors Mr. Doan stepped in front of him and said,

"' Excuse me.'" Report of Proceedings (RP) at 157. Mr. Todd turned around and saw

Mr. Terrell, who was holding up his identification badge. Mr. Todd immediately began

running to escape the two employees.

       Mr. Todd ran into Mr. Doan and pushed past him. The employees stopped Mr.

Todd as he was attempting to jump on a pallet of concrete. Mr. Todd grabbed Mr. Doan's

shirt and ripped it, knocked Mr. Doan's glasses off, and scratched Mr. Doan's hand.

Another customer, Jeremy Proctor, approached at this time and helped the two employees

subdue Mr. Todd. At an undetermined point-but after the men began to subdue Mr.


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State v. Todd


Todd-the Leatherman fell out of Mr. Todd's pocket onto the ground. Throughout the

scuffle, the two employees identified themselves to Mr. Proctor and Mr. Todd as asset

protection employees for Home Depot. The employees recovered the Leatherman,

detained Mr. Todd, and called law enforcement.

       Procedural background

       The State charged Mr. Todd with one count of second degree robbery. Mr. Todd

did not deny attempting to steal the Leatherman tool. Rather, he contended he did not use

force to obtain, retain, or overcome resistance to the taking of the item; but instead used

force to escape two assailants, whom he claimed he did not know were Home Depot

employees.

       The trial court prepared jury instructions based on instructions proposed by the

parties. The court's definitional instruction for second degree robbery stated:

              A person commits the crime of robbery in the second degree when
      he or she unlawfully and with intent to commit theft thereof takes personal
      property from the person or in the presence of another against that person's
      will by the use or threatened use of immediate force, violence, or fear of
      injury to that person. The person from whom the property is taken must
      have an ownership, representative, or possessory interest in the property
      taken.
              A threat to use immediate force or violence may be either expressed
      or implied. The 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 case the degree of force is immaterial.


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State v. Todd


Clerk's Papers (CP) at 46. The court's to-convict instruction stated in relevant

part:

                To convict the defendant of the crime of robbery in the second
        degree, each of the following elements of the crime must be proved beyond
        a reasonable doubt:
                (1) That on or about September 6, 2015, the defendant unlawfully
        took personally [sic] property from the person or in the presence of another;
                (2) That the defendant intended to commit theft of the property;
                (3) That the person from whom the property was taken had an
        ownership, representative, or possessory interest in the property taken;
              · (4) That the taking was against that 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;
                (5) That force or fear was used by the defendant to obtain or retain
        possession of the property; and
                (6) That any of these acts occurred in the State of Washington.

CP at 47. Mr. Todd did not object to any instruction or take exception to the trial

court's failure to give any proposed instruction.

        During its deliberations, the jury by written inquiry asked the court to

resolve an apparent inconsistency between the definitional and the to-convict

instructions. The inquiry asked whether the jury should read the language "' or to

prevent or overcome resistance to the taking"' into element 5 of the to-convict

instruction. CP at 59. The trial court responded by telling the jury to carefully

review all instructions.




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State v. Todd


       The jury found Mr. Todd guilty of second degree robbery. Thereafter, the

trial court sentenced Mr. Todd to 50 months of confinement and 18 months of

community custody. Mr. Todd appealed.

                                       ANALYSIS

       TO-CONVICT INSTRUCTION


       Mr. Todd contends the to-convict jury instruction omitted an essential element of

robbery, thus relieving the State from its burden of proving all elements beyond a

reasonable doubt and his right to due process. He asserts the instruction omitted the

element that force be used to "prevent or overcome resistance to the taking" of property.

       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). Ajury instruction is erroneous ifit 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." State v. Richie, 191 Wn. App.

916, 927, 365 P.3d 770 (2015). "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.


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No. 34536-0-III
State v. Todd


       The State first argues that Mr. Todd failed to preserve the alleged error with an

objection. We disagree. "[T]he 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."

Id. at 927.

       The State next argues that the to-convict instruction included all elements of the

crime. We agree.

       Robbery contains both statutory and nonstatutory elements. There are three

statutory elements; the first two read:

       A person commits robbery when he or she [ 1] unlawfully takes personal
       property from the person of another or in his or her presence against his or
       her will [2] 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.

RCW 9A.56.190. In describing the offender's purpose for using force, the statute

provides: "Such force or fear must be used to obtain or retain possession of the property,

or to prevent or overcome resistance to the taking." Some authorities do not list the

preceding sentence as an element, but our Supreme Court has in previous opinions. Cf

State v. Ralph, 175 Wn. App. 814, 824, 308 P.3d 729 (2013) and State v. Truong, 168

Wn. App. 529, 537, 277 P.3d 74 (2012) with State v. Allen, 159 Wn.2d 1, 9, 147 P.3d 581

(2006). We, therefore, consider this to be a third statutory element.


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State v. Todd


       There are two nonstatutory elements. One is intent to commit theft. Allen, 159

Wn.2d at 9 n.3. Another is that the victim have an ownership, representative, or

possessory interest in the property taken. Richie, 191 Wn. App. at 924.

       Here, the trial court's to-convict instruction included the three statutory elements

and the two nonstatutory elements. Although the to-convict instruction omitted the

phrase, "prevent or overcome resistance to the taking," the State did not argue this means

for this particular element. We conclude that the to-convict instruction properly set forth

all five elements of second degree robbery.

       UNANIMITY INSTRUCTION

       Mr. Todd next contends that the trial court denied his constitutional right to a

unanimous jury verdict by failing to require the jury to be unanimous when it was

instructed on an alternative means crime.

       Criminal defendants in Washington have a right to a unanimous jury verdict.

WASH. CONST. art. I,§ 21; State v. Ortega-Martinez, 124 Wn.2d 702,707,881 P.2d 231

(1994). "[T]he right to a unanimous verdict is derived from the fundamental

constitutional right to a trial by jury and thus may be raised for the first time on appeal."

State v. Handyside, 42 Wn. App. 412,415, 711 P.2d 379 (1985). "The right to a

unanimous jury verdict includes the right to express jury unanimity on the means by



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State v. Todd


which the defendant committed the crime when alternative means are alleged." State v.

Emery, 161 Wn. App. 172, 198, 253 P.3d 413 (2011), aff'd, 174 Wn.2d 741, 278 P.3d

653 (2012).

       When a jury is instructed on alternative means of committing an offense, a general

verdict of guilty does not raise due process concerns if the record contains sufficient

evidence to find the defendant guilty of each means. State v. Woodlyn, 188 Wn.2d 157,

162, 392 P.3d 1062 (2017). But where the evidence supports only one means, a court

reviewing a constitutional unanimity challenge may not assume that the jury relied

unanimously on the supported means. Id.

       Mr. Todd argues that his right to a unanimous jury verdict was violated not once,

but twice. He first argues the instructions were erroneous because they did not require the

jury to be unanimous whether the property was taken from "the person of another" or "in

his or her presence." RCW 9A.56.190. He next argues the instructions were erroneous

because they did not require the jury to be unanimous whether the force used was "to

obtain property," or "to retain property." We disagree with both arguments.

              A.     Taking property from the person or from the presence of another

       Here, the to-convict instruction permitted the jury to convict if the property was

taken "from the person or in the presence of another." CP at 4 7. Mr. Todd cites a series


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State v. Todd


of cases holding that taking property "from the person" and "in the presence of another"

are alternative means for committing robbery. See State v. 0 'Donnell, 142 Wn. App. 314,

323, 174 PJd 1205 (2007) (citing State v. Chamroeum Nam, 136 Wn. App. 698, 705, 150

P.3d 617 (2007)); State v. Roche, 75 Wn. App. 500, 511, 878 P.2d 497 (1994). These

cases do not undertake a structured analysis of the alternative means issue, and predate

State v. Peterson, 168 Wn.2d 763, 230 PJd 588 (2010) and State v. Sandholm, 184

Wn.2d 726, 364 PJd 87 (2015). In Peterson and Sandholm, the Washington Supreme

Court set forth factors that courts should consider when determining whether a statute

creates an alternative means crime. Accordingly, we will analyze the question presented

under the more modem framework.

       An alternative means crime is one that provides that the criminal conduct

proscribed by statute may be proved in a variety of ways. Peterson, 168 Wn.2d at 769.

Determining which statutes create alternative means crimes is a matter of judicial

interpretation, which begins by reviewing the criminal statute. Sandholm, 184 Wn.2d at

732. Statutes do not create alternative means simply by using disjunctive language or

framework. Id. at 734. The inquiry is whether the statute describes distinct acts that

amount to the same crime. Peterson, 168 Wn.2d at 770. "The more varied the criminal

conduct, the more likely the statute describes alternative means. But when the statute


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State v. Todd


describes minor nuances inhering in the same act, the more likely the various

'alternatives' are merely facets of the same criminal conduct." Sandholm, 184 Wn.2d at

734.

       The pertinent inquiry therefore is whether taking property "from the person" and

"in the presence of another" describe sufficiently distinct acts so that the two constitute

alternative means. Both acts criminalize taking property from another. Whether a person

grabs a wallet from the victim's pocket or in front of the victim's nose, the acts are

similar. We hold that the two types of conduct are sufficiently similar so they do not

constitute alternative means crimes.

              B.     Purposes for use offorce or fear

       Here, the to-convict instruction permitted the jury to convict if the purpose for

using force or fear was "to obtain or retain possession of the property." CP at 4 7.

       The pertinent inquiry is whether "using force or fear to obtain possession of

property" and "using force or fear to retain possession of property" describe sufficiently

distinct acts so that the two constitute alternative means. Both acts criminalize taking

property from another by use of force or fear. Whether a person uses force or fear to

initially obtain property or to later retain it are similar acts. We hold that the two types of

conduct are sufficiently similar so they do not constitute alternative means crimes.



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State v. Todd


       APPELLATE COSTS


       Mr. Todd, noting his indigent status, asks this court to exercise its discretion and

not impose appellate costs in the event the State substantially prevails. The State has

substantially prevailed. The State does not explicitly oppose Mr. Todd's request. The

State notes that the trial court found Mr. Todd indigent for purposes of his appeal, admits

that it knows of no change in his financial circumstances, and requests this court to "only

impose appellate costs in conformity with RAP 14.2 as amended." Br. of Resp't at 30.

       RAP 14.2, recently amended, governs the award of appellate costs. The rule

generally requires an award of appellate costs to the party that substantially prevails. The

rule permits an appellate court, in its decision, to decline an award of appellate costs, or to

direct a commissioner or clerk to decide the issue. A commissioner or clerk is precluded

from awarding appellate costs if it finds that the defendant lacks the current or likely

future ability to pay such costs. If a trial court earlier found that the defendant was

indigent for purposes of appeal, that finding continues unless the commissioner or clerk

determines by a preponderance of the evidence that the defendant's financial

circumstances have significantly improved since the earlier finding.




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State v. Todd

       A majority of this panel has determined that our commissioner should decide the

issue of appellate costs. In the event the State seeks an award of appellate costs, we direct

our commissioner to enter an order consistent with RAP 14.2.

       Affirmed.




 WE CONCUR:



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