                                                                  FILED
                                                             SEPTEMBER 20, 2016
                                                            In the Office of the Clerk of Court
                                                          WA State Court of Appeals, Division Ill




                IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                   DIVISION THREE

    STATE OF WASHINGTON,                          )         No. 33251-9-111
                                                  )
                           Respondent,            )
                                                  )
I          v.                                     )         UNPUBLISHED OPINION

I
I
    RICHARD ALEXANDER TIGNER,
                                                  )
                                                  )
                                                  )

I                          Appellant.             )


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           PENNELL, J. -    A jury convicted Richard Tigner of second degree robbery and

    fourth degree assault. Mr. Tigner appeals, alleging improper jury instructions as well as

    several errors raised in his statement of additional grounds for relief. We affirm.

                                              FACTS

           Mr. Tigner is serving 73 months in prison as a result of a dispute over a bicycle.
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    Mr. Tigner and Mark Huffman were acquaintances. One evening, Mr. Tigner asked to
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No. 33251-9-III
State v. Tigner


borrow Mr. Huffman's bicycle. Mr. Huffman refused. The next morning, Mr. Huffman

discovered his bicycle was missing. Mr. Huffman went out looking for his bicycle and

eventually located both Mr. Tigner and his bicycle at a Pik-A-Pop convenience store not

far from his home.

       When Mr. Huffman arrived at the store, Mr. Tigner ran out into the street acting

"real hyper and wanting to welcome [Mr. Huffman]." Verbatim Report of Proceedings

(VRP) (Feb. 26, 2015) at 68. Mr. Huffman told Mr. Tigner he needed his bicycle back.

Mr. Tigner started mumbling incomprehensibly and began punching Mr. Huffman. Mr.

Huffman yelled for bystanders to call the police. He tried to get away by entering the

store, but Mr. Tigner grabbed him, held him down and punched him again. At this point,

the store clerk became involved wanting to know what was happening. Mr. Tigner then

went into the store after the clerk. Mr. Huffman seized this opportunity to grab his

bicycle and go home.

       While inside the Pik-A-Pop, the clerk told Mr. Tigner he needed to calm down or

leave. Mr. Tigner responded with some derogatory comments and punched the clerk in

the stomach.

      The police arrived as Mr. Tigner was coming out of the Pik-A-Pop. Officers

arrested Mr. Tigner and noted he was "very agitated" and that "[a]t some points, he was



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State v. Tigner


screaming, sweating profusely" and acting "like a crazy man would be." Id. at 56. One

officer noted Mr. Tigner's behavior was consistent with someone under the influence.

       Mr. Tigner was charged with one count of robbery in the second degree (based on

the incident with the bicycle) and one count of assault in the fourth degree (based on the

attack of the store clerk). At the close of testimony at trial, the court denied Mr. Tigner's

request for a voluntary intoxication instruction, "since the defendant has not presented

testimony." Id. at 103.

       The court's reasonable doubt instruction provided, in relevant part:

       A reasonable doubt is one for which a reason exists and may arise from the
       evidence or lack of evidence. It is such a doubt as would exist in the mind
       of a reasonable person after fully, fairly, and carefully considering all of the
       evidence or lack of evidence. If, from such consideration, you have an
       abiding belief in the truth of the charge, you are satisfied beyond a
       reasonable doubt.

Clerk's Papers (CP) at 28. There was no objection to this instruction.

       A jury found Mr. Tigner guilty as charged. Mr. Tigner appeals.

                                        ANALYSIS

Voluntary intoxication jury instruction

       Mr. Tigner contends the trial court erred in not providing the jury with a voluntary

intoxication instruction. This court reviews a trial court's decision to reject a jury

instruction on voluntary intoxication for abuse of discretion. State v. Priest, 100 Wn.

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State v. Tigner


App. 451, 453-54, 997 P.2d 452 (2000). RCW 9A.16.090 allows a jury to take a

defendant's intoxication into consideration in determining whether a defendant acted with

the required mental state. To warrant a voluntary intoxication instruction, a defendant

must show: (1) the charged offense has a particular mental state, (2) there is substantial

evidence the defendant had been drinking or using drugs, and (3) there is evidence the

drinking or drug use affected the defendant's ability to acquire the required mental state.

State v. Gallegos, 65 Wn. App. 230, 238, 828 P.2d 37 (1992).

       The trial court stated it would not grant an intoxication instruction because "the

defendant has not presented testimony." VRP (Feb. 26, 2015) at 103. This reasoning was

erroneous. The defense need not proffer any evidence in order to receive an intoxication

instruction. While affirmative defense evidence is generally more persuasive, an

intoxication instruction can be given based solely on evidence elicited during the State's

case. State v. Gabryschak, 83 Wn. App. 249,253, 921 P.2d 549 (1996).

      Although we disagree with the trial court's reasoning, we uphold the outcome.

Mr. Tigner's case did not warrant an intoxication instruction because there was no

"showing of drug or alcohol consumption" or "the effect of the consumption on the

drinker." State v. Walters, 162 Wn. App. 74, 82, 255 P.3d 835 (2011). While numerous

witnesses noted Mr. Tigner's unusual behavior, there was no actual evidence of drug or


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State v. Tigner


alcohol use. As a consequence, there was no evidence from which the jury could link Mr.

Tigner's behavior with intoxication as opposed to some other cause, such as mental

illness or an aggressive personality trait. Based on the limited evidence presented to the

jury, the trial court's decision to exclude an intoxication instruction was correct. State v.

Mriglot, 88 Wn.2d 573, 578, 564 P.2d 784 (1977).

Reasonable doubt jury instruction

       Apart from his arguments regarding intoxication, Mr. Tigner argues, for the first

time on appeal, that the trial court's reasonable doubt instruction was constitutionally

defective. Mr. Tigner cites two flaws with the court's instruction: (1) it focused the jury
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on a search for "the truth of the charge," and (2) it required the jurors to articulate a

reason for their doubt in order to acquit.

       Generally, a party's failure to raise an issue at trial waives the issue on appeal.

RAP 2.5(a). However, three exceptions permit review, including a claim of manifest

error affecting a constitutional right. RAP 2.5(a)(3). To determine if that exception

applies, appellate courts ask two questions: "(l) Has the party claiming error shown the

error is truly of a constitutional magnitude, and if so, (2) has the party demonstrated that

the error is manifest?" State v. Kalebaugh, 183 Wn.2d 578,583,355 P.3d 253 (2015).




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State v. Tigner


       The challenges asserted by Mr. Tigner are not novel. The trial court's reasonable

doubt instruction mirrored the applicable pattern instruction. Compare CP at 28 with 11

WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.01, at

85 (3d ed. 2008). The language in this instruction has been upheld consistently for

decades, including in the context of challenges analogous to Mr. Tigner's. See State v.

Bennett, 161 Wn.2d 303, 317, 165 P.3d 1241 (2007); State v. Pirtle, 127 Wn.2d 628, 656,




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904 P.2d 245 (1995); State v. Lizarraga, 191 Wn. App. 530, 567, 364 P.3d 810 (2015),

review denied, 185 Wn.2d 1022, 369 P.3d 501 (2016); State v. Federov, 181 Wn. App.

187,200, 324 P.3d 784 (2014), review denied, 181 Wn.2d 1009, 335 P.3d 941 (2014).

Given this legal landscape, Mr. Tigner cannot establish manifest constitutional error.

Review is unwarranted.

                    STATEMENT OF ADDITIONAL GROUNDS

Photographic evidence

       Mr. Tigner seemingly contends the trial court erred by admitting visually

emotional photographs as evidence. He does not identify or describe the photographs at

issue. Without access to more information regarding the photographs, we have no basis

for concluding either that the trial court abused its discretion by admitting the

photographs or that the admission of the photographs materially affected the verdict. This



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State v. Tigner


claim of error must fail.

Insufficient evidence

       Mr. Tigner also seemingly makes a sufficiency of the evidence challenge to his

second degree robbery conviction. Evidence is sufficient to support a conviction if, when

viewed in the light most favorable to the State, it permits any rational trier of fact to find

the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119

Wn.2d 192,201, 829 P.2d 1068 (1992). Appellate courts defer to the trier of fact on

issues of conflicting testimony, witness credibility, and persuasiveness of the evidence.

State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

       Washington has adopted a "transactional view" of robbery. State v. Manchester,

57 Wn. App. 765, 770, 790 P.2d 217 (1990). As such, robbery is a continuing offense,

lasting from the initial acquisition of property through retention and escape. Id. Force

used at any stage of this continuum can satisfy the force element of the statutory offense.

State v. Robinson, 73 Wn. App. 851, 856, 872 P .2d 43 ( 1994 ). In addition to proving

force, second degree robbery also requires proof of a specific intent to steal. State v.

Sublett, 156 Wn. App. 160, 188, 231 P.3d 231 (2010).

       Trial testimony established Mr. Tigner took Mr. Huffman's bicycle after being

denied permission to do so. Once confronted, Mr. Tigner used force to try to retain the



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State v. Tigner


bicycle. This evidence provided the jury sufficient proof of intent to steal and use of
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force. We reject Mr. Tigner's challenge.

Ineffective assistance of counsel

          Finally, Mr. Tigner claims his attorney provided ineffective assistance by failing to

develop an alternative defense strategy. The Sixth Amendment to the United States

Constitution guarantees a criminal defendant the right to effective assistance of counsel.

Stricklandv. Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984 ). To establish ineffective assistance of counsel, a defendant must prove (1) defense

counsel's representation was deficient, i.e., it fell below an objective standard of

reasonableness under the circumstances, and (2) the deficient representation prejudiced

him, i.e., a reasonable probability exists the outcome would have been different without

the deficient representation. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251

(1995).

       Mr. Tigner does not identify any specific flaws with his defense attorney's

performance. He does not argue his attorney failed to conduct an appropriate

investigation, present mitigating evidence, or subpoena relevant witnesses. While the

defense rested without calling any witnesses, such a decision is generally a "matter of

legitimate trial tactics that will not support a claim for ineffective assistance of counsel."


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State v. Tigner


State v. Maurice, 79 Wn. App. 544,552,903 P.2d 514 (1995). Because Mr. Tigner

provides us no basis for criticizing defense counsel's representation, the claim of

ineffective assistance of counsel must be rejected.

                                       CONCLUSION

       Based on the foregoing, we affirm the judgment and sentence of the trial court.

      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.


                                          Pennell, J.
WE CONCUR:




Lawrence-Berrey, A.CJ.
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