       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

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                       Appellant.                FILED: April 25, 2016                  SC<




       Leach, J. — Lorenzo Stewart appeals his conviction and sentence for first

degree robbery while armed with a deadly weapon. He argues (1) the jury was

improperly instructed on an uncharged alternative means of committing the

crime, (2) the trial court's instructions relieved the State of its burden of proof,

and (3) he received ineffective assistance of counsel for his attorney's failure to

propose a jury instruction providing the definition of "armed." We affirm because

the charging information adequately notified Stewart he would face charges

based on being "armed" with a deadly weapon, there was no instructional error,

and he fails to establish that but for counsel's alleged error the result would have

been different at trial.


                                      FACTS


       Joshua Miller, a Home Depot loss prevention officer, saw Lorenzo Stewart

walk toward the store. Miller observed Stewart get a shopping cart and place a
No. 73163-7-1/2




number of bulky items in his cart.      Stewart then pushed the cart to the return

desk.


        At the return register, Stewart told Chelsea Sneed, a cashier, that the

items were from his employer and that he had returned additional merchandise

the day before.    After Sneed processed the return, she gave Stewart a store

credit card with a balance of $290.05.

        After watching this, Miller approached Stewart, identified himself, and

asked him to come to the office. When Miller attempted to guide Stewart, he

became upset and said, "Don't touch me, I can walk on my own." Stewart then

veered toward the exit. Miller testified that he "tried to cut off his advance a little


bit more with my body." But Miller explained that Stewart then pulled out a knife:

        At that point I will quote, he said, Tm-a cut you, damn it." At [that]
        point I heard a flick at his right waist, and I threw my body
        backwards and tried to kick off of his shin, and as I did that, I saw a
        blade pass across my face.

Miller said the blade came within five to six inches of his face.


        Stewart ran toward the exit.   Miller followed.   Miller called 911 and told the


operator, "I'm an asset protection specialist at the Home Depot.           I just had a

shoplifter pull a knife on me." Miller said the knife was "the length of my hand

folded, so probably about four and a half, five inches." Miller described Stewart

to the operator and said that Stewart was traveling north on Aurora.

        Edmonds Police Officer Kraig Strum responded to the 911 call. He heard

another officer radio that he had found Stewart on Aurora.         When Officer Strum
No. 73163-7-1/3




arrived, he saw the officer approach Stewart. Stewart said, "I don't know you,

man," and fled.

      The officers pursued Stewart on foot across Aurora Avenue and into an

industrial complex. Eventually, Stewart fell. Officer Strum detained and frisked

Stewart. He did not find a knife.


       Edmonds K-9 Officer Jason Robinson arrived and began retracing

Stewart's path with his dog.      The dog led Officer Robinson back through the

industrial area. There he found a knife in the middle of the parking lot. The dog

indicated to Officer Robinson that the knife was associated with the scent he had


been following.   The knife was a switchblade-style knife, had a silver clip, and

was approximately four inches long.

      An officer drove Miller to the site of Stewart's arrest for identification.


Edmunds Police Officer Jodi Sackville was with Stewart when Miller drove by.

She testified that Stewart looked at the car and yelled, "[Tjhat's the asshole that

tried to stop me." King County Deputy Sheriff Josephine McNaughton, who was

also present, asked Stewart why he pulled his knife. Stewart responded, "I carry

a knife every day, it is my God given right to carry a knife. That man had no right

to put his hands on me. If I would have slashed a knife at that man, you wouldn't

have been able to talk to him."


      The State charged Stewart by amended information with one count of

robbery in the first degree. The information asserted a deadly weapon sentence
No. 73163-7-1/4




enhancement, alleging Stewart was "armed" with a knife at the time he

committed the robbery.    After a four-day trial, a jury convicted Stewart of the

robbery charge and found by special verdict that he was armed with a deadly

weapon when committing the crime. Stewart received a low-end standard-range

sentence of 57 months for the robbery conviction and 24 months for the

sentencing enhancement for a total sentence of 81 months.

      Stewart appeals.

                                    ANALYSIS


Uncharged Alternative Means

      Stewart claims that the trial court improperly instructed the jury on an

uncharged alternative means of committing first degree robbery. Specifically, he

claims that the State charged him with "displaying" a deadly weapon, but the trial

court instructed the jury that it could convict Stewart if it found he was "armed"

with a deadly weapon.

      The state and federal constitutions provide criminal defendants the right to

be notified of the nature and cause of the accusation against them.1

      [Wjhere the statute provides that a crime may be committed in
      different ways or by different means, it is proper to charge in the
      information that the crime was committed in one of the ways or by
      one of the means specified in the statute, or in all the ways.[2]




      1 Wash. Const, art. I, § 22; U.S. Const, amend. IV; State v. Kiorsvik, 117
Wn.2d 93, 97, 812 P.2d 86 (1991).
      2 State v. Severns, 13 Wn.2d 542, 548, 125 P.2d 659 (1942).
No. 73163-7-1/5




When the manner of committing a crime is an element of the offense, the

defendant must be informed of this element in the information in order to prepare

a proper defense.3 We presume any instruction that allows a jury to convict on

an uncharged alternative means prejudices the defendant, and on direct appeal

the State must prove the error was harmless beyond a reasonable doubt to avoid

reversal.4

       RCW 9A.56.200 describes three alternative means of committing robbery

in the first degree:

             (a) In the commission of a robbery or of immediate flight
       therefrom, he or she:
             (i) Is armed with a deadly weapon; or
             (ii) Displays what appears to be a firearm or other deadly
       weapon; or
             (iii) Inflicts bodily injury.

       Here, the State's amended information charged Stewart with robbery in

the first degree on the grounds that "in the commission of and in immediate flight

therefrom, the defendant displayed what appeared to be a deadly weapon, to-wit:

a knife."      (Emphasis added.)             The amended information also asserted a

sentencing enhancement, alleging, "Lorenzo Stewart at said time of being armed

with a deadly weapon, to-wit: a knife, under the authority of RCW 9.94A.825 and

9.94A.533(4)." (Emphasis added.)




       3 State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332 (1988).
       4 State v. Laramie, 141 Wn. App. 332, 342-43, 169 P.3d 859 (2007).
No. 73163-7-1/6




       The court's instructions to the jury, however, stated that "[a] person

commits the crime of robbery in the first degree when in the commission of a

robbery he or she is armed with a deadly weapon." (Emphasis added.) Stewart

argues this was error.

        Stewart relies principally on In re Personal Restraint of Brockie.5 There,

as here, the information alleged that Brockie committed first degree robbery on

the grounds that he "displayed what appeared to be a firearm or other deadly

weapon."6    The jury instructions, however, stated two alternative means of

committing first degree robbery, namely, that "he or she is armed with a deadly

weapon or displays what appears to be a firearm or other deadly weapon."7 The

court concluded this was error because "[njothing in the charging information put

Brockie on notice that he might be charged with the alternative means of first

degree robbery while armed with a deadly weapon."8         But using the different

standard of review for personal restraint petitions, the court found that based on

the record, any juror who found Brockie was armed with the weapon would have

necessarily also concluded that he displayed it.9 The court denied Brockie's

petition.




       5 178 Wn.2d 532, 538, 309 P.3d 498 (2013).
       6 Brockie. 178 Wn.2d at 535.
       7 Brockie, 178 Wn.2d at 535.
       8 Brockie. 178 Wn.2d at 538.
       9 Brockie. 178 Wn.2d at 539.
No. 73163-7-1/7




      On direct appeal, the appellate court presumes that erroneous instructions

given on behalf of the State prejudiced the defendant unless the record

affirmatively shows the error was harmless.10 Stewart claims the record does not

show this because, unlike Brockie, the record here includes evidence that he was

armed with but did not display the knife. For instance, he told police it was his

"God given right to carry a knife." (Emphasis added.) He stated, "If I would have

slashed a knife at that man, you wouldn't have been able to talk to him." Thus, in

Stewart's view, it is possible the jury found he was armed with but did not display

the knife. Assuming Stewart received no notice of the alternative means of being

"armed" with a deadly weapon, this would be prejudicial error.

       But a charging document need not use the exact words of the statute if it

uses words conveying the same meaning that give reasonable notice to the

defendant of the charge.11 Here, the sentencing enhancement allegation for the

robbery charge accused Stewart "of being armed with a deadly weapon" at the

time he committed the robbery. Read together, the robbery charge and related

sentencing enhancement allegation gave Stewart notice that he should expect to

defend against the charges of "displaying" and being "armed" with a deadly

weapon. Thus, the discrepancy between the charging information and the to-

convict instruction did not prejudice him. It was not reversible error.



       10 Brockie. 178 Wn.2d at 538-39.
       11 In re Pers. Restraint of Benavidez. 160 Wn. App. 165, 170, 246 P.3d
842(2011).
No. 73163-7-1/8




       Stewart replies that the language in the sentencing enhancement is

insufficient to provide notice because the jury only considers the enhancement if

it finds him guilty of the predicate crime. We disagree. The question is whether

Stewart received fair notice of the alternative means of being "armed" with a

deadly weapon in the charging information, not the order in which the jury

considers the crime and sentencing enhancement during deliberations.

       Stewart's alternative means challenge fails.

Instructional Error


       Next, Stewart argues that the sentencing enhancement instructions

relieved the State of its burden to show the knife was a "deadly weapon." He did

not object to the instructions below.

       At the outset, the State claims that Stewart has failed to explain why he

can raise this issue. In most cases, appellate courts decline to consider issues

raised for the first time on appeal.12 RAP 2.5(a)(3) provides an exception for

claims of manifest error affecting a constitutional right.13 Stewart fails to cite or

discuss RAP 2.5 and thus arguably fails to demonstrate his entitlement to

appellate review. But he identified the error as constitutional in his briefing and

argues that it affected the outcome at trial. Even assuming he properly raises the

issue, we find no error.




       12 RAP 2.5(a); State v. Kirkman. 159 Wn.2d 918, 926, 155 P.3d 125
(2007).
       13 Kirkman, 159 Wn.2d at 926.

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No. 73163-7-1/9




       "'Jury instructions are sufficient when they allow counsel to argue their

theory of the case, are not misleading, and when read as a whole properly inform

the trier of fact of the applicable law.'"14 Jury instructions must convey that the

State bears the burden of proving each essential element of the offense beyond

a reasonable doubt.15 "It is reversible error if the instructions relieve the State of

this burden."16 Generally, the Sixth Amendment requires that the jury must find

any fact increasing the penalty for a crime beyond a reasonable doubt.17

       We review jury instructions de novo to ensure they accurately state the

law, do not mislead the jury, and allow the parties to argue their theories of the

case.18

       RCW 9.94A.825 defines a deadly weapon for the purposes of a

sentencing enhancement and states:

             For the purposes of this section, a deadly weapon is an
       implement or instrument which has the capacity to inflict death and
       from the manner in which it is used, is likely to produce or may
       easily and readily produce death. The following instruments are
       included in the term deadly weapon: . . . any knife having a blade
       longer than three inches.

(Emphasis added.)




      14 State v. Sibert. 168 Wn.2d 306, 315, 230 P.3d 142 (2010) (quoting
Bodinv. Citvof Stanwood. 130 Wn.2d 726, 732, 927 P.2d 240 (1996)).
          15 Sibert, 168Wn.2dat315.
      16 Sibert, 168Wn.2dat315.
      17 Blakelv v. Washington. 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed.
2d 403 (2004).
      18 State v. Willis, 153 Wn.2d 366, 370, 103 P.3d 1213(2005).
No. 73163-7-1/10




      Here, jury instruction 17 stated that a knife with a three-inch blade was a

per se deadly weapon for the purposes of the sentencing enhancement:

            For purposes of a special verdict the State must prove
      beyond a reasonable doubt that the defendant was armed with a
      deadly weapon at the time of the commission of the crime.
            A knife having a blade longer than three inches is a deadly
      weapon.

      For the first degree robbery charge, the court instructed the jury on the

definition of a deadly weapon:

            Deadly weapon means any weapon, device, instrument,
      substance, or article, which under the circumstances in which it is
      used, attempted to be used, or threatened to be used, is readily
      capable of causing death or substantial bodily harm.

      Stewart makes two claims. First, he contends jury instruction 17 failed to

inform the jury that it had to find the knife blade was longer than three inches to

answer "yes," the knife was a deadly weapon, on the special verdict form.

Instead, he argues the jury instruction merely provided one example of a deadly

weapon. Second, he argues the special verdict form contains no definition of

deadly weapon. As a result, Stewart argues the jurors may have doubted the

knife found by officers was the knife he used at Home Depot, yet still believed he

used a knife not presented at trial. According to Stewart, this would allow the jury

to convict him of using a deadly weapon even if it believed he used a knife blade

that was less than three inches long.

       Again, we disagree. Miller described the knife in his 911 call as the length

of his "hand folded, so probably about four and a half, five inches." The knife

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No. 73163-7-1/11




recovered after Stewart's arrest was located along the path he fled and was

identified by a police dog as associated with the scent it was tracking. The four-

inch knife was shown to the jury. No evidence of another knife was presented at

trial. Thus, the overwhelming evidence established that Stewart brandished a

four-inch knife at Miller. If the jury concluded Stewart had a knife at the time of

the robbery, it necessarily had to conclude the knife was longer than three inches

based on the trial evidence.


      Any knife with a blade longer than three inches is a deadly weapon as a

matter of law.19 When the State alleges that the defendant used a per se deadly

weapon, "[tjhe jury should be instructed the implement is a deadly weapon as a

matter of law."20 The instruction does not, as Stewart contends, merely provide

an example of a deadly weapon.       We conclude the trial court did not err by

instructing the jury that the knife was a per se deadly weapon.

Ineffective Assistance of Counsel

       Stewart claims his attorney was ineffective for failing to request an

instruction defining the term "armed" where there was evidence Stewart merely

possessed the weapon. We disagree.


       19 RCW 9.94A.825.
      20 State v. Rahier, 37 Wn. App. 571, 576, 681 P.2d 1299 (1984). Rahier
was decided based on RCW 9.95.040, a statute predating the Sentencing
Reform Act of 1981 (SRA), ch. 9.94A RCW. But the case applies because the
SRA's definition of deadly weapon for enhancement is unchanged.          11
Washington Practice: Washington Pattern Jury Instructions: Criminal 2.07
cmt. at 41 (3d ed. 2008) (citing State v. Sullivan. 47 Wn. App. 81, 733 P.2d 598
(1987)); State v. Samanieoo. 76 Wn. App. 76, 79-80, 882 P.2d 195 (1994).
                                       -11-
No. 73163-7-1/12




       A defendant claiming ineffective assistance of counsel has the burden of

showing that (1) counsel's performance was deficient and (2) counsel's deficient

performance prejudiced the defendant's case.21          To show prejudice, Stewart

must show "a reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different."22 The claim fails if the

defendant does not establish either prong.23 Counsel's performance is deficient

if it falls below an objective standard of reasonableness.24           Our review of

counsel's   performance    is   highly   deferential,   and   we   strongly   presume

reasonableness.25

       To establish deficient performance, Stewart must show that (1) had

counsel requested the instruction, the trial court likely would have given it and (2)

defense counsel's failure to request the instruction was not a legitimate tactical

decision.26 Our Supreme Court has held that a person is "armed" as a matter of

law if "a weapon is easily accessible and readily available for use, either for

offensive or defensive purposes," and a nexus exists between the defendant, the




      21 Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
      22 Strickland. 466 U.S. at 694.
      23 Strickland. 466 U.S. at 700.
      24 State v. McFarland. 127 Wn.2d 322, 334, 899 P.2d 1251 (1995).
       25 McFarland. 127 Wn.2d at 335.
      26 State v. Powell. 150 Wn. App. 139, 154-55, 206 P.3d 703 (2009).
                                         -12-
No. 73163-7-1/13




weapon, and the crime.27       "Jury instructions need not, however, expressly

contain 'nexus' language."28

       Stewart argues that his attorney's failure to request a "nexus" instruction

constitutes deficient performance.    He argues he told officers it was his "'God

given right to carry a knife' but that he did not pull it on Miller." Based on this

assertion, Stewart argues "it is possible [the jury] answered 'yes' to the special

verdict based solely on Stewart's admission to carrying a knife, which is legally

insufficient to qualify as being armed."

       His argument is unpersuasive. Stewart's statement did not encompass a

denial of pulling or using a knife. He claimed during his arrest that it was his

"God given right to carry a knife," then stated, "That man had no right to put his

hands on me.     If I would have slashed a knife at that man, you wouldn't have

been able to talk to him."


       Furthermore, overwhelming evidence supports the conclusion that Stewart

did not merely possess the knife but used it during the robbery.            Miller's

unrebutted testimony was that he heard a "flick," threw himself back, and saw a

blade pass within five or six inches of his face.     After giving chase, officers

recovered the knife on the same path Stewart used to flee. The jury also heard




      27 State v. Valdobinos. 122 Wn.2d 270, 282, 858 P.2d 199 (1993); State v.
Brown. 162 Wn.2d 422, 431, 173 P.3d 245 (2007).
      28 State v. Barnes. 153 Wn.2d 378, 383, 103 P.3d 1219 (2005).
                                           -13-
No. 73163-7-1/14




Stewart's confrontational statement about Miller where he said, "[T]hat's the

asshole that tried to stop me."

       A defendant is entitled to a jury instruction if substantial evidence in the

record supports his theory.29 We do not find substantial evidence in the record to

support the nexus instruction.      To the contrary, the overwhelming evidence

demonstrated that Stewart did not merely possess a knife but used it in the

commission of the crime.


       For the same reason, Stewart does not show a reasonable probability that

but for his attorney's failure to request the instruction the result at trial would have

been different. Indeed, the trial evidence clearly showed Stewart actually used

the knife during the robbery.     This is sufficient to establish that the knife was

easily accessible and readily available for either offensive or defensive purposes

and was used in connection with the robbery.

       Stewart's claim for ineffective assistance of counsel fails.


       We affirm.




WE CONCUR:




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       29 Powell. 150 Wn. App. at 154.
                                         -14-
