                                                     2015 APR 27 ArilO:M*




      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                               No. 70903-8-1
                    Respondent,
       v.                                      DIVISION ONE

LEONARD WHITFIELD BURGESS                      UNPUBLISHED OPINION


                    Appellant.                 FILED: April 27, 2015


       Leach, J. — Leonard Burgess appeals his conviction for robbery in the first

degree. He argues that because he did not use force in his initial taking of a cell

phone, the State failed to prove an essential element of the charged offense. He

also contends that the trial court committed instructional errors and requests

correction of a scrivener's error in his judgment and sentence. We remand for

correction of the judgment and sentence with instructions to add the second

alternative means of committing robbery in the first degree.         But sufficient

evidence supports the conviction, no evidence supports Burgess's proposed

lesser included instruction, and the pattern reasonable doubt instruction did not

dilute the State's burden or mischaracterize the jury's role. We affirm Burgess's

conviction.
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                                    Background

       In February 2013 at about 3:00 a.m., airport shuttle van driver Paul

Sarkowsky sat in his van in a Safeway parking lot, waiting for a passenger. A

man, later identified as Burgess, approached him and asked to use his cell

phone. At first, Sarkowsky refused, but after further conversation, he agreed to

let him use the phone. Sarkowsky dialed the number Burgess wished to call,

handed him the phone, and turned his attention away to allow Burgess privacy.

At that point, Burgess ran away with the phone. Sarkowsky chased him.

       Burgess ran from the parking lot onto a street and ended up in the

backyard of a house occupied by Maria Litvinenko. Sarkowsky followed Burgess

into the yard.      Burgess pulled out a knife and told Sarkowsky to back off.

Sarkowsky told him he just wanted his phone back.        The two scuffled, and

Sarkowsky sustained slash wounds on his finger and chest.

       Awakened by the scuffle, Litvinenko came out onto her porch and saw the

two men.   Sarkowsky told her to call the police, then backed out of the yard,

followed by Burgess.       Once Burgess left Litvinenko's yard, he ran north.

Sarkowsky waited for the police.

       After 15 to 20 minutes searching the area with the aid of a police dog,

officers found Burgess several blocks away, under a truck in the backyard of a

home. Burgess did not have either the cell phone or a knife, and officers did not

find either item during their search. Sarkowsky identified Burgess as the man




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who took his phone.      Sarkowsky was taken to a hospital, where he received

stitches in his finger and chest.

       Several hours later, Sarkowsky returned to the area with his wife and

used her cell phone to locate his phone. They found it between the tire of a car

and the curb on the street north of Litvinenko's home.


       The State charged Burgess with robbery in the first degree with a deadly

weapon enhancement.        The trial court rejected the defense's proposed jury

instruction on the lesser included offense of theft in the third degree. The court

also rejected defense's proposed reasonable doubt instruction, which omitted the

optional sentence in the pattern instruction that describes "beyond a reasonable

doubt" as having "an abiding belief in the truth of the charge."

       The jury convicted Burgess of robbery in the first degree but did not find

that he was armed with a deadly weapon. Burgess appeals.

                                      Analysis

       First, Burgess contends that his conviction violated his due process rights

because the State failed to prove an essential element of the crime as charged:

that his taking of Sarkowsky's cell phone was by the use or the threat of force.

       The State must prove every element of a charged crime beyond a

reasonable doubt.1     Jury instructions "'must make the relevant legal standard




       1 In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368
(1970).
No. 70903-8-1/4




manifestly apparent to the average juror.'"2 A jury instruction not objected to

becomes the law of the case.3 And the State assumes the burden of proving

each element in a to-convict instruction, even where an element increases the

State's burden.4 The presentation of evidence and argument at trial, together

with the totality of the court's instructions, may reduce the possibility that the jury

misconstrued its instructions.5

       When reviewing a challenge to the sufficiency of the evidence, we view

the evidence in the light most favorable to the prosecution and ask whether any

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.6    We draw all reasonable inferences from the evidence in

favor of the State.7    A defendant challenging the sufficiency of the evidence

"admits the truth of the State's evidence."8         We do not review credibility

determinations, which are for the trier of fact.9 Thus, we defer to the jury on




       2 State v. Borsheim, 140 Wn. App. 357, 366, 165 P.3d 417 (2007) (internal
quotation marks omitted) (quoting State v. Watkins, 136 Wn. App. 240, 241, 148
P.3d 1112 (2006)).
       3 State v. Witherspoon, 180 Wn.2d 875, 884, 329 P.3d 888 (2014) (citing
State v. Willis. 153 Wn.2d 366, 374, 103 P.3d 1213 (2005)).
       4 Witherspoon, 180 Wn.2d at 884.
         5 See State v. Corbett. 158 Wn. App. 576, 592-93, 242 P.3d 52 (2010)
(totality of instructions, evidence, and arguments made it clear that jury had to
find separate and distinct acts for each of the guilty verdicts).
        6 State v. Hosier. 157 Wn.2d 1, 8, 133 P.3d 936 (2006).
       7 Hosier. 157Wn.2dat8.
       8 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
       9 State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).


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No. 70903-8-1 / 5




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

evidence.10

      The to-convict instruction required the State to prove six elements of

robbery in the first degree beyond a reasonable doubt:

             (1) That on or about February 18, 2013, the defendant
      unlawfully took personal property from the person or in the
      presence of another;
             (2) That the defendant intended to commit theft of the
      property;
              (3) That the taking was against the person's will by the
      defendant's use or threatened use of immediate force, violence or
      fear of injury to that person;
               (4) That force or fear was used by the defendant to obtain or
      retain possession of the property to prevent or overcome resistance
      to the taking;
               (5) (a) That in the commission of these acts or in immediate
      flight therefrom the defendant was armed with a deadly weapon or
      (b) That in the commission of these acts or in immediate flight
      therefrom the defendant inflicted bodily injury; and
               (6) That any of these acts occurred in the State of
      Washington.

      This instruction incorporated the terms of RCW 9A.56.190, which defines

the crime of robbery:

      A person commits robbery when he or she 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. Such 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
       cases the degree of force is immaterial.111]

       10 In re Pers. Restraint of Martinez. 171 Wn.2d 354, 364, 256 P.3d 277
(2011).
       11 The final sentence of this provision, not at issue here, reads, "Such
taking constitutes robbery whenever it appears that, although the taking was fully
completed without the knowledge of the person from whom taken, such
knowledge was prevented by the use of force or fear."
No. 70903-8-1 / 6




       Burgess argues that because it is undisputed that Sarkowsky willingly

handed him his phone, the State did not prove the third element of the to-convict

instruction: that "the taking was against the person's will by the defendant's use

or threatened use of immediate force, violence or fear of injury."

       We disagree. Washington courts have adopted a "transactional" view of

robbery "'that does not consider the robbery complete until the assailant has

effected his escape.'"12    RCW 9A.56.190's definition of robbery reflects this

transactional view.   The taking described in the statute's first sentence, which

must be accomplished by force, extends to obtaining and to retaining possession

of another person's property as well as to preventing or overcoming resistance to

the taking.

       State v. Handburqh,13 in which our Supreme Court analyzed and adopted

this transactional view, involved a juvenile defendant who took the victim's

bicycle in her absence. The defendant argued that because he did not take the

victim's bicycle "'in her presence,'" the State could not prove every element of

robbery.14    Our Supreme Court concluded, however, that evidence of the

defendant's subsequent use of force to retain possession and overcome the

victim's resistance to the taking was sufficient to support a conviction for robbery.

The court held that "the force necessary to support a robbery conviction need not



       12 State v. Handburqh. 119 Wn.2d 284, 290, 830 P.2d 641 (1992) (quoting
State v. Manchester, 57 Wn. App. 765, 770, 790 P.2d 217 (1990)).
       13 119 Wn.2d 284, 285-86, 830 P.2d 641 (1992).
       14 Handburqh, 119 Wn.2d at 287.


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No. 70903-8-1 / 7




be used in the initial acquisition of the property. Rather, the retention, via force

against the property owner, of property initially taken peaceably or outside the

presence of the property owner, is robbery."15

       Here,   after   fleeing   with   Sarkowsky's   phone,   Burgess    overcame

Sarkowsky's resistance to the taking by slashing him with a knife. The court's

instructions informed the jury that to convict Burgess of robbery in the first

degree, jurors needed to find that Burgess used or threatened to use "immediate

force, violence or fear of injury" and that this force or fear could be "used by the

defendant to obtain or retain possession of the property [or] to prevent or

overcome resistance to the taking."      Under Washington law, "a taking can be

accomplished either by forcibly acquiring the property from the owner's person or

in his presence or by acquiring possession of property in the owner's absence

and using force, violence, or threats to retain possession."16           Under this

transactional view, the State did not assume the separate burden of proving that

Burgess used force in the initial taking. Here, as in Handburqh, in light of the

evidence, argument, and the instructions as a whole, the State presented

sufficient evidence for the jury to find that Burgess used force to retain

possession of Sarkowsky's property.

       Next, Burgess contends that the trial court erred by rejecting his proposed

instruction on the lesser included offense of theft in the third degree. He argues




       15 Handburqh, 119 Wn.2d at 293.
       16 Handburqh. 119 Wn.2d at 288 (citing Manchester, 57 Wn. App. at 769).
No. 70903-8-1 / 8




that "affirmative evidence showed Mr. Burgess no longer had the stolen phone

when force or fear was used."


       A defendant "may be found guilty of an offense the commission of which is

necessarily included within that with which he or she is charged in the indictment

or information."17 We review de novo a challenge to jury instructions based on

an error of law.18 But where the trial court rejects an instruction based on the

facts of the case, we review the court's decision for abuse of discretion.19

       A defendant is entitled to an instruction on a lesser included offense where


(1) each element of the lesser offense is a necessary element of the charged

offense (the legal prong) and (2) the evidence in the case supports an inference

that only the lesser crime was committed (the factual prong).20 The included

offense must arise from the same act or transaction alleged in the charged

offense.21 When applying the factual prong of the two-part test, we view the

evidence in the light most favorable to the party requesting the instruction.22 But

the evidence "must affirmatively establish the defendant's theory of the case—it

is not enough that the jury might disbelieve the evidence pointing to guilt."23


       17 RCW 10.61.006.
        18 State v. Clausing, 147 Wn.2d 620, 626-27, 56 P.3d 550 (2002); State v.
Hunter, 152 Wn. App. 30, 43, 216 P.3d 421 (2009).
        19 Hunter. 152 Wn. App. at 43.
        20 State v. Huven Bich Nguyen, 165 Wn.2d 428, 434, 197 P.3d 673 (2008)
(citing State v. Workman. 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)); State v.
Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000).
        21 Huven Bich Nguyen. 165 Wn.2d at 435 (citing State v. Porter, 150
Wn.2d 732, 738-40, 82 P.3d 234 (2004)).
       22 Fernandez-Medina, 141 Wn.2d at 455-56.
       23 Fernandez-Medina. 141 Wn.2d at 456.


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No. 70903-8-1 / 9




       Here, the parties agree that theft is necessarily included in the crime of

robbery, satisfying the legal prong of the test. Both the charged offense and the

proposed lesser included offense instruction involve the same act or transaction.

Burgess contends that his case also satisfies the factual prong because "there

was affirmative evidence that Mr. Burgess had abandoned the phone before he

reached the yard in which he and Mr. Sarkowsky scuffled."

      We disagree. The evidence supports exactly the opposite inference: that

Burgess did not abandon the phone until after his confrontation with Sarkowsky.

Sarkowsky testified that he saw the phone in Burgess's hand as he fled the

Safeway parking lot and that although he saw Burgess drop other items, he did

not see him drop the phone during the chase. Sarkowsky also testified that when

he asked Burgess why he wanted the phone, Burgess said he wanted it for

money. Sarkowsky stated that Burgess told him to "back off' but did not tell him

he no longer had the phone. Finally, Sarkowsky and his wife found the phone

later that morning in a location north of Maria Litvinenko's backyard, in the

direction Burgess fled after his confrontation with Sarkowsky.      This strongly

suggests that Burgess did not abandon the phone until after he used force

against Sarkowsky to retain possession of it.

      The evidence does not support an inference that Burgess committed only

the lesser included offense of theft in the third degree. The trial court did not

abuse its discretion by rejecting Burgess's proposed instruction.




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No. 70903-8-1/10




       Burgess also challenges the trial court's reasonable doubt instruction. He

contends that the court erred by instructing the jury that "[i]f, from such

consideration, you have an abiding belief in the truth of the charge, you are

satisfied beyond a reasonable doubt."24        Burgess argues, "By equating proof

beyond a reasonable doubt with a 'belief in the truth' of the charge, the court

confused the critical role of the jury." Burgess analogizes to State v. Emery,25 in

which our Supreme Court held that the prosecutor's statement during closing

argument that the jury's job was to "'speak the truth'" mischaracterized the jury's

role. Burgess argues, "The 'belief in the truth' language encourages the jury to

undertake an impermissible search for the truth and invites the error identified in

Emery."

       In State v. Federov,26 however, we recently rejected exactly this argument.

Unlike the prosecutor's improper argument in Emery, the "abiding belief

language in the pattern instruction did not tell the jury that its job was to "speak

the truth" or otherwise misadvise the jury about its role.     Nor did it dilute the

State's burden of proof. "Here, read in context, the 'belief in the truth' phrase

accurately informs the jury its '"job is to determine whether the State has proved

the charged offenses beyond a reasonable doubt.'"27 The instruction accurately


      24 The trial court used 11 Washington Practice: Washington Pattern Jury
Instructions: Criminal 4.01, at 85 (3d ed. 2008), which includes the optional
"abiding belief language.
       25 174 Wn.2d 741, 760, 278 P.3d 653 (2012).
      26 181 Wn. App. 187, 199-200, 324 P.3d 784, review denied, 181 Wn.2d
1009(2014).
       27 Federov. 181 Wn. App. at 200 (quoting Emery, 174 Wn.2d at 760).

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No. 70903-8-1/11




stated the law, and the trial court did not err in rejecting Burgess's proposed

instruction that would have omitted the "abiding belief language.

       Finally, Burgess requests the correction of a scrivener's error in his

judgment and sentence. The State charged Burgess with robbery in the first

degree based on two alternative means. The jury could find Burgess committed

the crime "when in the commission of a robbery or in immediate flight therefrom

he or she is armed with a deadly weapon or inflicts bodily injury." The court's

verdict form did not require that the jury specify under which alternative means it

convicted Burgess.      The judgment and sentence, however, includes only the

deadly weapon alternative, RCW 9A.56.200(1)(a)(i).          It does not include any

reference to RCW 9A.56.200(1)(a)(iii), the bodily injury alternative.

       To remedy a scrivener's error in a judgment and sentence that did not

prejudice the defendant, we remand to the trial court for correction.28 Although

the State contends that "the error [Burgess] complains of is not an error," it "does

not object to remand to correct this omission." We remand to the trial court with

instructions    to   correct   the   judgment    and   sentence   by    adding   RCW

9A.56.200(1 )(a)(iii), the second alternative means of conviction for robbery in the

first degree.

                                       Conclusion


       Because the evidence supports Burgess's conviction, but not Burgess's

proposed lesser included offense instruction, and the court's reasonable doubt


       28 State v. Moten. 95 Wn. App. 927, 929, 934-35, 976 P.2d 1286 (1999).

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No. 70903-8-1/12




instruction did not misadvise the jury or dilute the State's burden of proof, we

affirm. We remand to the trial court with instructions to correct a scrivener's error

in Burgess's judgment and sentence by adding RCW 9A.56.200(1 )(a)(iii), the

"bodily injury" means of conviction for robbery in the first degree.




                                                                       ^
WE CONCUR:




                                                           da%^




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