                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                       November 1, 2016



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
    STATE OF WASHINGTON,                                            No. 48229-1-II

                               Respondent,

         v.

    JAMEZ EDWARD BROWN,                                      UNPUBLISHED OPINION

                               Appellant.

        WORSWICK, P.J. — Jamez Edward Brown appeals his conviction for first degree robbery

and his sentence for third degree assault. Brown argues, and the State concedes, that the trial

court erred by instructing the jury on an uncharged alternative means of committing the crime of

first degree robbery and by exceeding its sentencing authority when it imposed a sentence

beyond the statutory maximum for third degree assault.1 We accept the State’s concessions and

reverse Brown’s conviction for first degree robbery and remand for a new trial on that charge,

and we remand for resentencing or amendment of the community custody term on Brown’s third

degree assault conviction.


1
  Brown also argues that the trial court erred by failing to instruct the jury on each element of
first degree robbery and in not taking the first degree robbery charge from the jury for lack of a
sufficient information, and Brown argues that his trial counsel was ineffective by failing to
object to the court’s jury instructions on an uncharged alternative means of committing first
degree robbery and for proposing a first degree robbery instruction that omitted an essential
element of the offense. Because the State properly concedes that the trial court erred by
instructing the jury on an uncharged alternative means and by exceeding its sentencing authority,
we do not consider Brown’s additional arguments.
No. 48229-1-II



                                                FACTS

         On February 24, 2015, a Macy’s sales associate saw a man, later identified as Jamez

Edward Brown, run out of the store with an armful of unpaid merchandise. A bystander watched

Brown run out of the store and confronted him in the parking lot. The bystander told Brown to

return the unpaid merchandise, but Brown refused and pointed what appeared to be a handgun at

the bystander. Brown left the Macy’s parking lot, and he was later apprehended by police.

While in police custody, Brown spit on an officer’s face.

         The State charged Brown with first degree robbery,2 charging only the alternative means

of “unlawfully tak[ing] personal property from a person, against such person’s will.” Clerk’s

Papers (CP) at 45. Brown was also charged with third degree assault.3

         At trial, witnesses testified to the above facts. The jury instructions stated: “A person

commits the crime of robbery when he or she unlawfully . . . 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.” CP at 102 (emphasis added). The trial court also provided the jury with the

following first degree robbery to-convict instruction:

                 To convict the defendant of the crime of robbery in the first degree . . . each
         of the following six elements must be proved beyond a reasonable doubt:
                 (1) That on or about February 24, 2015, the defendant unlawfully took
         personal property from the person or in the presence of another.



2
    RCW 9A.56.200(1)(a)(ii).
3
  RCW 9A.36.031(1)(g). In addition, Brown was charged with one count of attempting to elude
a pursuing police vehicle, with special allegations, and one count of third degree assault. The
jury found Brown guilty of attempting to elude a pursuing police vehicle and not guilty of the
additional third degree assault count, but neither charge is at issue in this appeal.


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No. 48229-1-II



CP at 107 (emphasis added).

       The jury returned verdicts finding Brown guilty of first degree robbery and third degree

assault. In addition to sentencing Brown to 160 months’ incarceration for first degree robbery,

the court sentenced Brown to 60 months’ incarceration plus 12 months of community custody for

the third degree assault charge. Brown appeals his first degree robbery conviction and his third

degree assault sentence. The State concedes error on both points.

                                            ANALYSIS

                                       I. JURY INSTRUCTIONS

       Brown argues, and the State concedes, that the trial court erred by instructing the jury on

an uncharged alternative means of committing first degree robbery. We accept the State’s

concession, reverse Brown’s first degree robbery conviction, and remand for a new trial.

       The State is required to inform an accused of the criminal charges to be met at trial, and

the State cannot try an accused for an uncharged crime. State v. Lindsey, 177 Wn. App. 233,

246-47, 311 P.3d 61 (2013). When the State charges an accused with committing one of several

alternative means to a single crime, a trial court errs by instructing the jury that it may consider

any uncharged means by which the accused could have committed that crime. State v. Bray, 52

Wn. App. 30, 34, 756 P.2d 1332 (1988). Instructing a jury on an uncharged alternative means

violates the defendant’s right to be informed of the charges against him. State v. Laramie, 141

Wn. App. 332, 343, 169 P.3d 859 (2007) (citing U.S. CONST. amend. VI; CONST. art. I, § 22). A

jury instruction that contains uncharged alternative means is presumed prejudicial, and “it is the




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No. 48229-1-II



State’s burden to prove that the error was harmless.” In re Pers. Restraint of Brockie, 178

Wn.2d 532, 536, 309 P.3d 498 (2013).

       Here, the third amended information charged Brown with “unlawfully tak[ing] personal

property from a person, against such person’s will.” CP at 45. The court’s instruction to the jury

provided that in order to find Brown guilty of first degree robbery, it must be proven beyond a

reasonable doubt that Brown “unlawfully took personal property from the person or in the

presence of another.” CP at 107 (emphasis added).

       The trial court instructed the jury that it could convict Brown of first degree robbery by

the alternative means of unlawfully taking personal property in the presence of another. The trial

court erred in instructing the jury that it could consider uncharged alternative means because the

information charged Brown with one of two alternative means of committing first degree

robbery. This instruction is presumed prejudicial, and the State concedes that this constitutes

reversible error. We accept the State’s concession, reverse Brown’s first degree robbery

conviction, and remand for a new trial.

                                          II. SENTENCING

       Brown also contends the trial court erred by imposing a sentence for third degree assault

that exceeded the statutory maximum. The State concedes error. We accept the State’s

concession, reverse Brown’s sentence for third degree assault, and remand for resentencing or

amendment of the community custody term.

       A court’s sentencing authority is limited to that granted by statute. In re Postsentence

Review of Combs, 176 Wn. App. 112, 117, 308 P.3d 763 (2013). Whether a sentencing court has




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No. 48229-1-II



exceeded its statutory authority is a question of law we review de novo. State v. Mann, 146 Wn.

App. 349, 357, 189 P.3d 843 (2008). If a court exceeds its sentencing authority, it commits

reversible error. State v. Winborne, 167 Wn. App. 320, 330, 273 P.3d 454 (2012).

       Under RCW 9.94A.505, a court exceeds its sentencing authority if it imposes a sentence

that exceeds the statutory maximum for the crime. Accordingly, a sentencing court is required to

reduce a community custody term “whenever an offender’s standard range term of confinement

in combination with the term of community custody exceeds the statutory maximum for the

crime.” RCW 9.94A.701(9).

       Brown was sentenced to 60 months’ incarceration and 12 months of community custody

for third degree assault, a class C felony. RCW 9A.36.031(2). The maximum sentence

authorized by statute for a class C felony is 60 months. RCW 9A.20.021(1)(c). As a result, the

trial court was required to reduce Brown’s 12 month community custody term so that his

standard range term of confinement and term of community custody did not exceed 60 months.

The trial court failed to do so. The State concedes Brown’s sentence exceeded the statutory

maximum for third degree assault. We accept the State’s concession and remand for

resentencing or amendment of the community custody term.

       In conclusion, we reverse Brown’s conviction for first degree robbery and remand for a

new trial, and we also remand for resentencing or amendment of the community custody term

regarding the third degree assault conviction.




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No. 48229-1-II



       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 in accordance with RCW

2.06.040, it is so ordered.



                                                                   Worswick, P.J.
 We concur:



 Lee, J.




 Sutton, J.




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