                                                                            FILED 

                                                                          JAN 15,2015 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                           )
                                               )        No. 31239-9-111
                       Respondent,             )
                                               )
       v.                                      )
                                               )
ROBERT MONREAL HOGUIN,                         )        UNPUBLISHED OPINION
                                               )
                       Appellant.              )

       SIDDOWAY, C.l. -      Robert Hoguin was charged with second degree robbery after

a loss prevention officer observed him shoplift merchandise from a Safeway store and

confronted him. Mr. Hoguin resisted, and a scuffle ensued. Mr. Hoguin appeals,

claiming that (1) insufficient evidence showed he took the items "from the person and in

the presence of' the loss prevention officer, as charged in the information; and (2) he was

denied his constitutional right to a unanimous jury verdict because the State presented

evidence of several different acts of resistance to support the "use or threatened use of

force" element of his robbery conviction and no Petrich l instruction was given.



       1 State   v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984).
No. 31239·9·111
State v. Hoguin


       Because sufficient evidence supports Mr. Hoguin's conviction and a Petrich

instruction was not required, we affirm.

                     FACTS AND PROCEDURAL BACKGROUND

       In August 2012, Martin Lennartz was working as a loss prevention officer at a

Safeway store in Spokane when he saw Robert Hoguin leave the store without paying for

items he had taken from shelves and placed in his shopping basket. Mr. Lennartz

followed Mr. Hoguin outside and told him he was under arrest. Because 'Mr. Hoguin

refused to comply with instructions and began to move away, Mr. Lennartz grabbed him

by the shirt. Mr. Hoguin elbowed Mr. Lennartz in the chest and continued to walk away.

       When Mr. Lennartz approached Mr. Hoguin a second time, Mr. Hoguin grabbed

hold of a bottle of Absolut Vodka in the basket as if to strike Mr. Lennartz, but then took

a swing at Mr. Lennartz with his fist instead. Mr. Lennartz retreated, and Mr. Hoguin

again walked away.

       When Mr. Lennartz confronted Mr. Hoguin a third time, Mr. Hoguin took a swing

at him using the vodka bottle. Mr. Lennartz managed to move away before being hit.

      Mr. Lennartz then went back inside the store to find his partner, for backup. As

the two men approached Mr. Hoguin at the far end of the parking lot, Mr. Hoguin again

grabbed the Absolut bottle and "kind of reared back with it." Report of Proceedings (RP)




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No. 31239-9-II1
State v. Hoguin


at 76. After a short struggle, the two officers managed to detain Mr. Hoguin and place

him under arrest. 2

          Mr. Hoguin was charged with second degree robbery. The information alleged

that Mr. Hoguin

          with the intent to commit theft, did unlawfully, take and retain personal
          property, that the defendant did not own, from the person and in the
          presence of Martin H Lennartz, against such person's will, by use or
          threatened use of immediate force, violence and fear of injury to Martin H.
          Lennartz.

Clerk's Papers (CP) at 1 (emphasis added).

          The final instructions given to the jury, however, substituted "or" for "and" in

describing the two criminal means of taking and retaining property, defining robbery as

follows:

                  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 ofanother against that person's
          will by the use or threatened use of immediate force, violence, or fear of
          injury to that person.

CP at 25 (Instruction 7) (emphasis added). The jury was similarly instructed that to

convict Mr. Hoguin of second degree robbery, the State must prove, among other

elements, that he unlawfully took personal property "from the person or in the presence

of another." CP at 26 (Instruction 8) (emphasis added).


          2   As a commissioned police officer, Mr. Lennartz has some limited power to
arrest.

                                                3
I
1   No. 31239-9-111

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J
    State v. Hoguin


i          In closing argument, the prosecutor enumerated six different acts of resistance by

I   Mr. Hoguin to support the "use of or threatened use of immediate force, violence or fear
1   of injury" element of the second degree robbery charge. RP at 194. He argued that
1
I
    "[e]ither one of [the six] supports the force that's required to convict Mr. Hoguin of

    robbery." RP at 196. The jury instructions did not contain any language requiring the

    jury to unanimously agree on which of the six acts satisfied the "use or threatened use of

    force, violence or fear of injury" element.

           Mr. Hoguin was convicted as charged and appeals.

                                            ANALYSIS

                                      1.   Sufficiency ofevidence

           Mr. Hoguin first asserts his conviction must be reversed because the State failed to

    prove the crime charged in the information. Whether the State proved something other

    than what it charged is a question oflaw, reviewed de novo. State v. Porter, 150 Wn.2d

    732, 735, 82 P.3d 234 (2004). We also review de novo a challenge to the sufficiency of

    the charging document. State v. Williams, 162 Wn.2d 177, 182, 170 P.3d 30 (2007).

           Together, RCW 9A.56.190 and RCW 9A.56.21 0 define the crime of second

    degree robbery. RCW 9A.56.21O(l) states that "[a] person is guilty of robbery in the

    second degree ifhe or she commits robbery." Robbery, in turn, is defined by RCW

    9A.56.190 as being committed when a person




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I     No. 31239-9-II1 


I     State v. Hoguin 




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             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.

I            The jury instructions given in Mr. Hoguin's trial mirrored the statute by stating

      that the crime can be committed in two ways: by unlawfully taking property from the

      person of another or in the presence of another. .

             Because the State's information charged that Mr. Hoguin took property "from the

      person and in the presence" of Mr. Lennartz, Mr. Hoguin argues that the State was

      required to prove that he committed robbery by both means. He concedes the State

      proved he unlawfully took and retained personal property in the presence of Mr.

      Lennartz. But he argues the State's evidence did not show he took the shoplifted items

      from Mr. Lennartz's person. He argues the appropriate remedy is dismissal.

             While a debatable issue formerly existed as to whether criminal means that are

      pleaded in the conjunctive in the State's information must all be proved at trial, it is now

      well-settled that "[a]cts described in a penal statute in the alternative or disjunctive may

      be pleaded in the conjunctive," and "[p]roofthat the crime was committed in anyone of

      several nonrepugnant ways or means will support a conviction." State v. Ford, 33 Wn.

      App. 788, 789-90, 658 P.2d 36 (1983); State v. Dixon, 78 Wn.2d 796, 802-03,479 P.2d

      931 (1971).




                                                    5

,I 

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!      No.31239-9-III
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~      State v. Hoguin
1
I             In Ford, the defendant was charged with taking a motor vehicle without
~
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       permission under former RCW 9A.56.070 (1975), recodified as RCW 9A.56.075(l). 33

       Wn. App. at 789. Under that statute, a person was guilty of taking a motor vehicle

       without permission in the second degree ifhe intentionally took or drove away a motor

       vehicle without permission or voluntarily rode in or upon the vehicle knowing it had been

       unlawfully taken. The information, however, charged that the defendant "'did

       intentionally and without permission ... take and drive away a motor vehicle ... and

       with knowledge that such motor vehicle had been unlawfully taken did voluntarily ride in

       ... such motor vehicle.'" Ford, 33 Wn. App. at 789 (alterations in original). On appeal,

       the court rejected the defendant's claim that because the State used the conjunctive "and,"

       it was required to prove both the taking and the riding. Jd. It held that "[t]he State is only

       required to prove either a taking or riding even though the information uses the

       conjunctive." Jd. at 790.

              Mr. Hoguin concedes the State proved he unlawfully took and retained personal

       property that he did not own in the presence of Mr. Lennartz, which is all the State had to

       prove. Sufficient evidence supports his conviction.

                                   II Petrich requirements do not apply

              Mr. Hoguin next asserts his conviction must be reversed because the State

       enumerated six acts of resistance by Mr. Hoguin and argued that "either one" could

       satisfy the "use or threatened use of immediate force, violence or fear of injury" element

                                                     6

j
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If   No. 31239-9-III

~I
     State v. Hoguin

1
I    of his second degree robbery charge. Although Mr. Hoguin neither proposed a Petrich

I    instruction at trial nor objected to the court's instruction, "the right to a unanimous

f    verdict is a fundamental constitutional right and may, therefore, be raised for the first
I
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   time on appeal." State v. Holland, 77 Wn. App. 420, 424,891 P.2d 49 (1995). 


            A criminal "defendant may be convicted only when a unanimous jury concludes

     that the criminal act charged in the information has been committed." Petrich, 101

     Wn.2d at 569 (citing State v. Stephens, 93 Wn.2d 186, 190,607 P.2d 304 (1980»),

     overruled in part on other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105

     (1988)). Accordingly, "where several acts are alleged, anyone of which could constitute

     the crime charged, the jury must unanimously agree on the act or incident that constitutes

     the crime." State v. Hayes, 81 Wn. App. 425,430,914 P.2d 788 (1996). In these

     "multiple acts" cases, the State must either elect the act on which it will rely for the

     conviction, or the court must instruct the jury that all 12 must agree that the same

     underlying criminal act has been proved beyond a reasonable doubt. Petrich, 101 Wn.2d

     at 569; Kitchen, 110 Wn.2d at 411.

            When it comes to the elements themselves, however, it is well settled that the jury

     need not agree on the particular evidence that satisfies the element or, if the legislature

     has provided that the element can be satisfied by alternative means, the jury need not

     agree on the means. Instead, Washington law protects the requirements of unanimity and

     proof beyond a reasonable doubt for jury determinations of simple elements by

                                                   7

No. 31239-9-II1
State v. Hoguin


mandating that the jury be instructed on all essential elements of the crime charged, State

v. Van Tuyl, 132 Wn. App. 750, 758, 133 P.3d 955 (2006) (citing U.S. CONST. amend.

VI; CONST. art. I, § 22), and through substantial evidence review. Jurors are not required

to agree on the evidence supporting the element; '" different jurors may be persuaded by

different pieces of evidence, even when they agree upon the bottom line. Plainly there is

no general requirement that the jury reach agreement on the preliminary factual issues

which underlie the verdict. '" Schad v. Arizona, 501 U.S. 624, 631-32, 111 S. ct. 2491,

115 L. Ed. 2d 555 (1991) (quoting McKoy v. North Carolina, 494 U.S. 433, 449, 110 S.

Ct. 1227, 108 L. Ed. 2d 369 (1990) (Blackmun, J., concurring)).

       The Petrich rule only applies "where several acts are alleged, anyone ofwhich

could constitute the crime charged." State v. Crane, 116 Wn.2d 315,325,804 P.2d 10

(1991) (emphasis added). It has no application where the State points to several pieces of

evidence (even if it is evidence of acts) as probative of a discrete element. To determine

whether Petrich is applicable, the court must ask the following three questions: (1) what

must be proven under the applicable statute, as set forth in the to-convict jury instruction;

(2) what does the evidence disclose; and (3) does the evidence disclose more than one

violation of the statute? State v. Hanson, 59 Wn. App. 651, 656 & n.5, 657, 800 P.2d

1124 (1990). The third inquiry "requires a comparison of what the statute requires with

what the evidence proves. If the evidence proves only one violation, then no Petrich




                                              8

No.3l239-9-III
State v. Hoguin


instruction is required, for a general verdict will necessarily reflect unanimous agreement

that the one violation occurred." ld. at 657 (footnote omitted).

       Here, taking multiple items of property at one time, followed by six acts of

resistance, does not amount to six acts of robbery. Second degree robbery, as defined in

the court's instructions, occurs when a person takes personal property from another by

force with intent to deprive that person of the property. In State v. Tvedt, 153 Wn.2d 705,

720, 107 P.3d 728 (2005), our Supreme Court made clear that

       [t]he unit of prosecution [for robbery] must encompass both a taking of
       property and a forcible taking against the will of the person from whom or
       from whose presence the property is taken. Accordingly, a conviction on
       one count of robbery may result from each separate taking of property from
       each person; however, multiple counts may not be based on multiple items
       of property taken from the same person at the same time ...

       Here, the State's evidence of one taking of multiple items of property, with the use

or threatened use of force demonstrated by evidence of several acts of resistance, proves

only one crime of second degree robbery. Because the State was not alleging multiple

acts of robbery, no unanimity instruction or election was required. 3



       3 Even where separate acts could support separate units of prosecution, evidence
may suggest that in a particular case, the acts were part of a "continuing course of
conduct." Petrich, 10 1 Wn.2d at 571. Where the evidence "shows only that the
defendant committed a single continuing offense," State v. Simonson, 91 Wn. App. 874,
883-84, 960 P.2d 955 (1998) (footnote omitted), the State need not make an election and
no jury instruction on unanimity is required. State v. Fiallo-Lopez, 78 Wn. App. 717,
724,899 P.2d 1294 (1995). "Generally, evidence that the charged conduct occurred at
different times and places tends to show that several distinct acts occurred rather than a
continuing course of conduct." ld. at 724. "In contrast, evidence that a defendant

                                             9

No. 31239-9-II1
State v. Hoguin


       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 





                                             Fearing, J.




engages in a series of actions intended to secure the same objective supports the
characterization of those actions asa continuing course of conduct rather than several
distinct acts." Id. at 724; see, e.g., State v. Handran, 113 Wn.2d 11,17,775 P.2d 453
(1989) (multiple acts of assault, which occurred in one place during short period of time
between the same aggressor and victim, showed a continuing course of conduct aimed at
securing sexual relations).

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